This blog will discuss who can be appointed as a Certificate Provider, the role of a Certificate Provider and why they are an important part of a Lasting Power of Attorney (LPA).
The terms Lasting Power of Attorney and LPA will be used interchangeably.
What Is a Certificate Provider?
A Certificate Provider is a person named in Section 10 of a Lasting Power of Attorney. Their main role is to verify that the Donor understands what an LPA is and that the Donor has willingly created their LPA. A Certificate Provider should be an independent person who confirms that there are no safeguarding issues or fraudulent activities involved in the Donor’s LPA. By agreeing to be named on the LPA, the Certificate Provider verifies that the Donor has not been influenced or forced into creating an LPA. They are verifying that the Donor is aware that an LPA has been created and that the Donor has given their Attorneys permission to act on their behalf. The Certificate Provider should always stay impartial and ensure that the Donor understands the nature of their LPA. By signing and dating the LPA, the Certificate Provider confirms the above.
Who Can Be a Certificate Provider?
There are a number of requirements a person has to meet before they can act as a Certificate Provider.
Anyone who wants to act as a Certificate Provider must be at least eighteen years old.
They must also either:
- Have known the Donor for at least two years at the time of completing the LPA.
- Have the relevant professional skills to evaluate whether the Donor understands what they are doing and is not being forced into making an LPA.
A Certificate Provider can be:
- A friend.
- A colleague.
- A neighbour.
A professional, such as a doctor, solicitor or registered social worker, can also be appointed as a Certificate Provider. A professional has the relevant skills to judge whether the Donor understands what they are doing and is not being forced into making an LPA.
It’s important to keep in mind that part of the Office of the Public Guardian’s verification checks includes checking the Certificate Provider’s surname. If it matches the Donor’s or any of the Attorneys’ last names, the Office of the Public Guardian will ask the Certificate Provider to confirm whether they are a family member of the Donor and/or the Attorney(s). The Office of the Public Guardian can, at any point, seek additional verification from the Certificate Provider if they notice anything unusual. For example, if they have been contacted by someone who believes that the Certificate Provider is not who they say they are, the Office of the Public Guardian may have the right to take safeguarding precautions.
Who Can’t Be a Certificate Provider?
As mentioned, one of the main purposes of a Certificate Provider is to certify that the Donor has not been pressured into making an LPA. There are, therefore, strict regulations on who can and cannot act as a Certificate Provider.
People who can’t be a Certificate Provider include:
- An Attorney or replacement Attorney. This includes Attorneys or replacement Attorneys active in an existing Lasting Power of Attorney or Enduring Power of Attorney.
- A family member. This includes immediate family members, relatives, civil partners, in-laws and step-relatives.
- The Donor’s or the Attorneys’ girlfriends, boyfriends or partners.
- The Donor’s or the Attorneys’ business partner.
- An employee of the Donor or an Attorney.
- An employee, manager, director or owner of a residential or care home where the Donor lives.
- A family member of an employee, manager, director or owner of a residential or care home where the Donor lives.
- An employee, manager, director or owner of a trust corporation that is acting as an Attorney in a Property and Financial Affairs LPA.
Does the Certificate Provider Have to Know the Donor for at Least Two Years?
The two-year rule only applies to personal relationships. So, if the Certificate Provider is a friend of the Donor, they would have to have known the Donor personally for at least two years at the time of completing the LPA. It is important that this personal relationship is one in which the Certificate Provider is able to discuss personal subjects with the Donor, such as the Donor’s LPA. If the Certificate Provider is a suitable professional, the two-year rule doesn’t apply. In this case, they will have to meet the criteria for having relevant professional skills to assess whether the Donor has mental capacity to make an LPA and is not being forced into making an LPA.
What Should the Certificate Provider Discuss with the Donor?
The Certificate Provider’s role is to ensure that the Donor has not been forced or persuaded by someone else to make an LPA. They are there to act as a safeguarding tool and ensure there are no hidden motives at play. If a Certificate Provider genuinely suspects that the Donor has been influenced or forced into making an LPA, they should not sign the LPA and may contact the Office of the Public Guardian for further guidance. On the other hand, it doesn’t necessarily mean that the Donor lacks mental capacity simply because the Certificate Provider feels that the Donor is making a bad decision. The Certificate Provider should speak with the Donor privately to confirm that they want to go ahead with the LPA and should review the LPA with the Donor to ensure that the Donor is happy with their Attorneys and the options they have chosen within the LPA. The Certificate Provider should ask the Donor whether they understand what an LPA is, whether they are happy to have one in place and whether they understand how much authority their Attorneys will have. For a Property and Financial Affairs LPA, they should discuss when the Donor would like the Attorneys to start using the LPA- when they have lost mental capacity, or as soon as the LPA is registered. However, a Health and Welfare LPA can only be used when the Donor has lost mental capacity.
Can the Certificate Provider Assess the Donor’s Mental Capacity?
The Certificate Provider is not required to give the Donor a formal mental capacity assessment. However, they can ask the Donor general and informal questions to help establish whether the Donor understands the significance of making an LPA. The Certificate Provider must satisfy themselves that the Donor understands what an LPA is and what it means to have an LPA in place. In addition, the Certificate Provider should ask the Donor open-ended questions to determine whether the Donor understands what an LPA is.
Open-ended questions to ask include:
- What is a Lasting Power of Attorney?
- Why have you decided to make a Lasting Power of Attorney?
- Who have you chosen as your Attorneys?
- What decisions will your Attorneys be able to make?
- When will your Attorneys be able to make decisions for you
- Can you explain what powers you are giving your Attorneys?
- Are there any decisions you don’t want your Attorneys to make?
- What would you do if one of your Attorneys made a decision that you didn’t agree with?
A person’s mental capacity can fluctuate. A Donor may not have the mental capacity to make a certain decision at a particular time but may have the mental capacity to make that same decision two days later. What’s important is that the Donor can make a particular decision at the time it needs to be made. Furthermore, the Donor needs to be able to understand the questions that are being asked. They need to have the ability to weigh their options and be able to make a choice. They also need to understand the consequences of the decisions that they are making. An effective way of assessing whether the Donor has mental capacity is to check whether the Donor can remember the necessary information long enough to make a decision. The Donor must also be able to communicate their decision in some way.
Common Issues and Mistakes That Can Delay an LPA
There are some common issues and mistakes that a Certificate Provider can make which can delay the registration of the Donor’s LPA. These include:
- Having the same last name as the Donor or the Attorneys.
If a Certificate Provider has the same last name as the Donor or any of the Attorneys, the Office of the Public Guardian will ask the Certificate Provider to clarify their relationship with the Donor or the Attorneys. This must be confirmed in writing. If the Certificate Provider has the same last name as the Donor or the Attorneys, the Certificate Provider should provide a written statement confirming that they are not related to avoid unnecessary delays. To be on the safe side, it’s best to choose a Certificate Provider who doesn’t share the same last name as the Donor or the Attorneys.
- Completing Section 10 incorrectly. For example, they may sign in the incorrect box or on the incorrect line.
- Signing or dating Section 10 in the wrong order. The Certificate Provider must sign Section 10 after the Donor has signed Section 9 and before the Attorneys have signed Section 11.
- Using correction fluid or a sticker to cover the Certificate Provider’s error.
- Using a pencil.
Conclusion
Hopefully, this blog has provided you with some useful information regarding the role of a Certificate Provider. This blog has not only highlighted the fundamental role of a Certificate Provider but also explained why they are necessary in an LPA. In addition, this blog has clarified who can and can’t be a Certificate Provider, as well as how to avoid common mistakes so that your LPA is not delayed or invalidated.