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Continue readingIf you are in the process of making a Lasting Power of Attorney (LPA), you may find that you are in need of a Lasting Power of Attorney Certificate Provider.
Perhaps you have been asked to be the certificate provider yourself, but what does it mean? What is a lasting power of attorney certificate provider? Who can be a certificate provider? We will answer all of your questions below.
What is Lasting Power of Attorney?
If you are looking for lasting power of attorney guidance you are in the right place. An LPA a legal document that you draw up which gives another person the ability to make decisions on your behalf. LPAs are often vital near the end of someone’s life. If you suffer a stroke, get in an accident, have dementia or a chronic illness, you may find yourself losing mental capacity. Key decisions to do with your health and welfare – as well as your finances – will need to be made. Unfortunately you may not be in the position to make them for yourself.
This is where an LPA comes in. With this document, a trustworthy individual chosen by you is able to act in your best interests. They can make important decisions on your behalf, as your ‘attorney’.
For a full guide to Lasting Powers of Attorney, you can read all about them on the government website.
What happens if I don’t have an LPA?
We always recommend making an LPA. If you lose capacity and do not have one in place, it becomes very difficult for those close to you to act on your behalf.
If this happens, anybody who wishes to act on your behalf will have to apply to the Court of Protection to be what is called your ‘deputy’. This can take a long time to go through; time you sadly may not have. It also costs quite a lot and it means that you won’t have any say in who gets appointed. The person applying to be your deputy will have to prove themselves to the court and demonstrate why they are a suitable person.
Not ideal.
Lasting Power of Attorney Form
When you apply for an LPA, there is a form to complete. At Hubbard, Pegman & Whitney, we can help you with lasting power of attorney guidance. We highly recommend sitting down with an experienced probate lawyer to do this, even though it is not technically required. As part of the LPA creation process, you will need a lasting power of attorney certificate provider.
What is a Certificate Provider for Lasting Power of Attorney?
Naturally, there are a number of checks that need to happen when drafting an LPA. Giving someone else the authority to make decisions on your behalf is a lot responsibility. As such it is open to abuse. Somebody could manipulate you into an LPA for their own benefit. Alternately you may not fully understand what it is that you’re doing, what permissions you are giving.
Therefore it is vital that checks are in place to ensure that you know exactly what you’re doing and are doing it for the right reasons. This is where your certificate provider comes in. Without them, your LPA will not be valid.
It is their responsibility to confirm that to the best of their knowledge you:
- Understand what an LPA is and why you are making it.
- Understand the powers and responsibilities that you are giving to your attorney(s).
- Are not being pressured, manipulated, or forced into making an LPA.
- Have no other issues preventing the LPA from being valid.
Who can be my LPA Certificate Provider?
There are two options for who can be a certificate provider for lasting powers of attorney. Either they can be somebody who has known you for two or more years. This could be a friend, colleague, or neighbour. Anyone who is familiar with you and can confidently assess the criteria for the LPA.
Alternatively, it can be a person with relevant professional skills and expertise. This includes: registered healthcare professionals (including GPs); barristers, solicitors or advocates; registered social workers; independent Mental Capacity Advocates.
There is scope for other professionals to be valid who are not included in this list. In the form there is a section that states the individual can be a certificate provider if they consider themselves to have the relevant professional skills and expertise to make the assessment. We highly recommend however that you consult with a probate solicitor first if you are planning on going down this route. The certificate provider must have the relevant skills and expertise. This is not a ‘telling a white lie on your CV’ kind of form.
Who cannot be my Certificate Provider Lasting Power of Attorney?
There are a number of people who are automatically not allowed to be your certificate provider for LPAs. These are:
- Your attorney, either from this LPA or any previous ones
- A member of your family, or your attorney’s family
- A business partner or employee paid by you or your attorney
- An owner, director, manager, or employee (or their family members) of the care home you are in
- A director or employee of a trust corporation appointed as an attorney (Property and Affairs LPAs only)
What does a Certificate Provider for Lasting Power of Attorney do?
If you are acting as a certificate provider for somebody’s LPA, it is more than just simply signing the form. You have to be the one to assess the donor’s capacity for yourself. By signing the form, you are stating that you believe them to be making this LPA with full knowledge and control over their actions.
To do this, you need to sit down with the donor privately in a location where they are comfortable speaking to you. Their attorney cannot be present or the LPA will be invalid. The attorney could be pressuring them or even unconsciously influencing the words they say. In some cases you may need somebody else to be there practically, such as a sign language interpreter. This is okay but must be stated on the lasting power of attorney form.
If you are satisfied that the person you are assessing is speaking freely, you can begin to assess their ability to make the decision. Preparation is really helpful here. Sit down and take a look through their proposed LPA before meeting with them. There is no formal list of questions to ask, so you need to take the time to think of open, unbiased questions to assess their understanding and intentions.
Some examples of these kinds of questions are:
- Can you please explain what an LPA is to me?
- Why is it that you want to make an LPA now?
- Who are you choosing as your attorney? Why? How do you know them?
- What powers are you giving to this person?
- Have they ever done anything to make you question their trustworthiness?
Ask follow up questions to delve into their answers a bit more. Try to be nice and specific. It is okay if they are not an expert in all of the finer details of LPA law, but they should have a solid understanding of powers of attorney. If there are any little red flags or concerns in how they talk about their attorney, ask them for more information. Take your time and be gentle – this isn’t an interrogation – but don’t dismiss something that doesn’t sit right with you.
Help with LPA Terminology
Enduring Power of Attorney EPA – These are the previous versions of LPAs and are now outdated. If you made a power of attorney prior to October 2007, it was likely an EPA. These are still valid so you do not need to worry but you cannot make a new one. LPAs have now replaced EPAs and offer much larger scope than their predecessors.
Everlasting Power of Attorney – This is a misspelling of a Lasting Power of Attorney.
Lasting of Power of Attorney – This is another misspelling of a Lasting Power of Attorney.
Lasting POA – Another acronym for Lasting Power of Attorney.
Talk to a solicitor for more help
With decades of collective experience in making LPAs, we at Hubbard Pegman and Whitney have likely seen it all at this point. We have had the joy of working with countless clients, helping them to make sure that everything is taken care of should the worst happen. We can help demystify the process, explaining complex terminology in understandable terms, and offer compassionate support and advice during difficult times.
Get in touch with one of our probate solicitors today for a solicitor in West London who can help. You can also get in touch with the contact box on this page, or email us at info@hpwsolicitors.co.uk.
Read more about LPAs and estate planning London here:
Powers of Attorney Act 2023 – Explained Simply
Difference between an LPA and a Deputyship