The Certificate Provider

The Certificate Provider

Interested in Making a Lasting Power of Attorney?

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Certificate Providers

An LPA must include a certificate by a person of a prescribed description that at the time the donor executed the instrument:

  • the donor understands the purpose of the instrument and the scope of the authority conferred under it;
  • no fraud or undue pressure is being used to induce the person to create the instrument;  and;
  • there is nothing else that would prevent the LPA from being created.

Categories Of Person

There are two types of categories of person of a prescribed description who may give an LPA certificate:

  • Knowledge certification – Has known the donor personally for a period of at least 2 years (knowledge is more than an acquaintance)
  • Skills certification – Someone who reasonably considers that he has the relevant professional skills and expertise to certify such matters.

Examples Of A Certificate Provider

A skills certificate provider could be one of the following:

  • A registered health care professional, such as a general practitioner;
  • A registered social worker;
  • A barrister, solicitor or advocate;
  • An Independent Mental Capacity Advocate;
  • Someone who considers they have the relevant professional skills and expertise to be a certificate provider.

A certificate provider cannot be:

  • Under 18 years of age;
  • A member of the either the donor or his attorney’s family;

This has been defined by the OPG as:

Spouse, civil partner, unmarried partner whether or not they are living at the same address as the donor or attorney, parents, grandparents, child, grandchild, brother, sister, uncle, nephew or niece, including those of full blood, half blood, step and illegitimate relationships and any relationship by marriage.

  • A business partner or paid employee of the donor or attorney(s);
  • An attorney appointed in the proposed or another lasting power of attorney or any enduring power of attorney made by the donor;
  • The owner, director, manager or an employee of a care home in which the donor lives or their family member or partner;
  • An employee of a trust corporation appointed as an attorney in the LPA with a financial LPA.

Independence

In addition, the prescribed form requires that the certificate provider is independent. The certificate provider has to have a strong element of detachment from the matter.

The certificate provider is not excluded from being a named person or a witness.

The Certificate Provider

As an important safeguard against abuse, one of the requirements to validly make a lasting power of attorney is for the document to be signed by an independent person who can confirm that the person (‘the donor’) making the power:

  • Understands its purpose and the scope of the authority it gives to the attorney;
  • No fraud or undue pressure is being used to induce the person to make the power; and
  • There is nothing else that would prevent the lasting power of attorney from being created.

The choice of suitable certificate provider is a personal and important decision.

There are two types of certificate provider:

A knowledge-based certificate provider who is someone who knows the person making the power personally for the previous two years or

A skill-based certificate provider who has relevant professional skills and expertise, for example,

  • A registered health care professional, such as a General Practitioner.
  • A registered social worker
  • A barrister, solicitor or advocate
  • An Independent Mental Capacity Advocate
  • Someone who considers they have the relevant professional skills and expertise to be a certificate provider.

A certificate provider cannot be:

  • Under 18 years of age
  • A member of either the donor or his attorney’s family
  • A business partner or aid employee of the donor or attorney(s)
  • An attorney appointed in the proposed or another lasting power of attorney or any enduring power of attorney made by the donor.
  • The owner, director, manager or an employee of a care home in which the donor lives (including care homes with nursing homes) or their family member or partner

The advantage of having a knowledge based certificate provider is that they are unlikely to charge you for this.  However, if challenged, they could be called to the Court of Protection to justify their opinion.   They would need to show to the Court that they know how to assess capacity under the Mental Capacity Act 2005.  If the challenge were successful the LPA would not be valid.  A skills based certificate provider would usually charge but would be expected to have higher skills and expertise than the knowledge based adviser.

Here for you.

We act on Power Of Attorney matters in Corby, Kettering, across Northamptonshire as well as all over the country in England and Wales. Distance is not a problem!

Call free on 0800 3 10 11 12 today or contact us online.

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