The recent case of TA v The Office of the Public Guardian [2023] raises an important point about the duties of a person who provides a Lasting Power of Attorney (LPA) ‘certificate’, and specifically regarding how important ‘opinions’ are when assessing an individual’s capacity to make informed decisions.
What is Lasting Power of Attorney
In simple terms, an LPA is a document in which one person (known as the Donor) gives another person or persons (the Attorney(s)) legal authority to make decisions for the Donor. Often, the intention is that the authority granted by the LPA would be used when the Donor is no longer able to make those decisions, be that for physical or mental health reasons.
After the Donor signs the LPA, and before any Attorney signs the LPA, another person known as the Certificate Provider must sign to give a certificate that in their opinion:
- the Donor understands the purpose and scope of the LPA;
- no fraud or undue pressure is being used to induce the Donor to create the LPA; and
- there is nothing else which would prevent the LPA from being created.
A Certificate Provider could be someone known to the Donor for more than two years (but who is not a family member) or a professional person with relevant skills and expertise, such as a Solicitor or Legal Executive specialising in this area.
Of course, there are numerous medical and psychological conditions that mean that opinions can differ, but the Certificate Provider should always be objective, and may find that their ‘opinion’ is called into question, especially if there is an existing relationship between the Certificate Provider and the Donor.
The case
‘KA’ was a 92-year-old resident of a care home with three adult children – one of whom, her daughter, was the appellant, referred to as ‘TA’.
In 2019, KA signed an LPA for Property & Financial Affairs which appointed all three of her children as Attorneys. However, KA cancelled that LPA in 2020.
In 2021, KA signed two new LPAs – the first for Property & Financial Affairs and the second for Health & Welfare – which appointed her daughter TA as the sole Attorney. The Certificate Provider for both LPAs was ‘X’, the former mother-in-law of TA and a close family friend of KA.
A visit to KA in late 2021 by a Solicitor resulted in that Solicitor forming the opinion that KA lacked the necessary mental capacity to sign LPAs. This resulted in an investigation by the Office of the Public Guardian (OPG) – the Government body responsible for registering LPAs and taking action where there are concerns about an Attorney – who then suspended the LPAs in 2022.
The investigation
The OPG investigation posed several questions to X, as the Certificate Provider. In her written evidence, she went to great lengths to describe her fondness for both KA and her former daughter-in-law TA, and to explain the ‘caring’, ‘loving, and ‘close’ relationship between the mother and daughter. X stated that she was ‘shocked’ by the questions which had arisen about the LPAs but noted that she had only discussed the matter with KA on the telephone, simply asking if she was happy about it, and KA confirming that she was. Furthermore, X claimed that she had no sense that KA was being pressured to act in a certain way, and was ‘cheerful’ and in ‘good spirits’ throughout their conversation.
However, X did specifically explain that at no point did KA express any particular wishes about who she wanted to be her Attorneys, or any wishes about how her Attorneys should act.
Conversely, a Court of Protection Visitor had also discussed the matter with KA, asking her more specific questions, which appeared to prompt a very different response. KA displayed no understanding or could give any explanation as to why only her daughter TA was appointed as her Attorney. When pressed as so whether she was happy for TA to have this sole responsibility, KA said: “I’d like the three of them [my children], decisions should be made together, I’ve always said that…”.
The ruling
As stated above, an LPA will only be valid if the Certificate Provider is able to confirm (with their signature) that in their opinion, at the time of signing:
- the Donor understands the purpose and scope of the LPA;
- no fraud or undue pressure is being used to induce the Donor to create the LPA; and
- there is nothing else which would prevent the LPA from being created.
If these stipulations cannot be satisfied, it is likely that the LPA ‘certificate’ (and therefore the LPA itself) will not be valid. Indeed, in the initial ruling, the judge determined that the Certificate Provider is signing to confirm their opinion that these requirements have been met, and so is not merely witnessing a signature.
There was little evidence in this case that X had met the requirements for creating an LPA by simply asking “are you happy with the LPA?”. The Certificate Provider couldn’t have conceivably been satisfied that KA understood the ‘purpose and scope’ of the LPA without asking more detailed questions (as would have occurred with the Court of Protection Visitor) and the Court agreed with this stance.
X’s failings as Certificate Provider therefore rendered the LPAs invalid.
What lessons can we learn from this case?
Contrary to any belief that the mere existence of a ‘certificate’ in an LPA is sufficient, the Court confirmed that the ‘certificate’ must be provided based on an informed opinion on the three key matters set out above, underscoring the purpose for providing the ‘certificate’ which is to safeguard the Donor.
This case therefore emphasises the pivotal role of the Certificate Provider which goes far beyond mere signature provision. If an LPA is challenged, the Court will seek to verify the Certificate Provider’s compliance with those safeguarding duties. If not, the LPA becomes invalid.
A Certificate Provider should therefore be conscious to ask relevant questions and to form opinions on the three key matters set out above, and make and keep notes relevant to this so that they can be produced in the event that a challenge were ever to occur.
