The Court of Protection has set out important clarification for Certificate Providers (CPs) on the extent of their responsibilities, which private client practitioners should be aware of - along with the Law Society’s recent practice guidance on LPAs.

The Certificate Provider

The CP must be an independent person – often it’s the lawyer taking instructions and drafting the LPA. They are required to certify, within the LPA, that the donor has the required mental capacity to enter into an LPA.

Extent of duty

The CoP has clarified that the CP is more than a witness - they are expected to form a ‘reasoned opinion’ on the issues on which they must be satisfied. To that end, the CP must check that the conditions set out in Sch 1 Mental Capacity Act 2005, which governs the formalities for an LPA, are satisfied before certifying.

Sch 1 of the MCA requires the CP to be satisfied that:

The donor understands the purpose of the LPA and the scope of the authority conferred
No fraud or undue pressure is being used to induce the donor into created the LPA and
There is nothing else which would prevent an LPA from being created

If steps are not taken to ensure these conditions are satisfied, the certificate will not be valid.

In TA v The Public Guardian, 2023 EWCOP 63, the evidence demonstrated that the CP had not formed an opinion those three issues as, for instance, they had not actually spoken to the donor. The LPAs were cancelled and an appeal failed.

In her ruling, Lieven J made clear that the mere existence or provision of a certificate is not, in itself, sufficient. This was a case of statutory interpretation – the wording of Sch 1 para 1(2)(2) requires the certificate to have particular content. The statutory requirements are there as an important safeguard.

She stated: “The content is that the certificate provider has an opinion as to three specific matters. Therefore, on a pure black letter law approach, a valid certificate must be based on an opinion as to those three matters. If the evidence showed that the certificate provider did not have such an opinion because, for example, they had not spoken to the donor, then there would not be a valid opinion… the Court is entitled to check that the requisite opinion has actually been formed.”

As the judge at first instance said: “An opinion provider must, as a matter of basic common sense, never mind legal sense, satisfy themselves that their opinion is reasonably held, otherwise they are acting in a plainly unreasonable way.”

Law Society guidance

The Society’s practice guidance on lasting powers of attorney emphasises the need for practitioners to inform donors that choosing a suitable CP is an important safeguard.

It also stresses the need for the CP to make clear notes relating to their certification of the LPA. Solicitors and other legal professionals who act as CPs should ensure their notes and records on how they formed their opinion as to the statutory requirements are as full as possible – and kept on file.

Non-legal CPs should be advised to keep their notes for as long as is necessary (at least until the LPA is registered), in case there is a challenge against the validity of the LPA.