Further to the recent decision in TA v The Public Guardian [2023] EWCOP 63
The validity of existing Lasting Powers of Attorneys (LPAs) has been called into question, following the recent decision in the case of TA v The Public Guardian [2023]. This is a particularly important development as it potentially renders existing LPAs invalid even in circumstances where the capacity of the donor is not an issue in dispute.
What is a LPA?
A LPA is a legal document by which a person (the donor), gives another person or persons (the attorneys) authority to make certain decisions on their behalf.
There are two types of LPAs, Property and Financial Affairs and Health and Welfare. They can be used in a variety of circumstances; however, the LPAs must first be registered with the Office of the Public Guardian (OPG) before they can be used.
Property and Financial Affairs
This type of LPA gives the attorneys authority to deal with the donor's property and financial affairs.
It can be used whilst the donor has capacity for example in circumstances when a donor is due to be out of the country for an extended period of time. Alternatively, it can be used when a donor has lost mental capacity.
Health and Welfare
This type of LPA gives attorneys authority to make decisions regarding matters such as moving into a care home, medical care and the donor's daily routine. There is also the option to provide the attorneys with the authority to make decisions about life sustaining treatment.
Unlike a property and financial affairs LPA, a health and welfare LPA can only be used if it has been determined that the donor has lost mental capacity.
Role of Certificate Provider
Before a LPA can be registered with the OPG, it must first be signed by a Certificate Provider whose role is to certify that the donor understands the significance of the LPA and that it is being made of the donor's own free will.
The Certificate Provider must have known the donor for at least two years or be a relevant professional (e.g. solicitor or doctor) who has the required skills to make this judgement.
The recent case of TA v the Public Guardian, has called into question the validity of existing LPAs on the basis that they have been incorrectly certified by certificate providers.
The case of TA v The Public Guardian
This case concerned a donor who originally appointed her three adult children as attorneys on a joint and several basis under a property and financial affairs LPA. This was revoked a year later and the donor subsequently made LPAs covering both property and financial affairs and health and welfare appointing only her daughter as the sole attorney.
The validity of the existing LPAs was called into question when one of the donor's children instructed a solicitor with a view to revoking the current LPAs in favour of new ones appointing all three children as attorneys. It was determined at this point that the donor lacked mental capacity to execute new LPAs and an investigation was undertaken as to the making of the LPAs.
It was noted that the role of Certificate Provider was taken by a long-standing friend of the donor who had known her for over 50 years. Despite satisfying herself that the donor had mental capacity in ordinary terms to make the LPA, it was determined that the Certificate Provider had not gone far enough to satisfy herself of the key requirements under paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act 2005 confirming:
- The donor understands the purpose of the instrument and the scope and authority conferred under it.
- That no fraud or undue pressure is being used to induce the donor to create a LPA
- There is nothing else which would prevent a lasting power of attorney from being created by the instrument.
An investigation determined that the donor had expressed a wish for all three of her children to be attorneys and to act on her behalf. She could not remember or provide any reason for only appointing her daughter in the most recent LPAs.
In the case it was held that the Certificate Provider had done little more than witness a signature and had not provided any opinion in accordance with paragraph 2(1)(e). A valid certificate must be based on an opinion of those matters. As a result, it was upheld that the LPAs were invalid and should be cancelled.
Moving Forwards
The judgement in this case highlighted the significance of the role of a Certificate Provider and their duties to ensure that the donor fully understands the purpose of the LPA and its significance. The role of a Certificate Provider is to safeguard and not merely confirm that the donor has capacity. As can be seen from this case, in the event that a LPA is disputed, the actions of the Certificate Provider can be called into question.
As a result of this case, Certificate Providers should approach undertaking this role with caution and should satisfy themselves that they understand the requirements of their role to safeguard the donors' interests and to avoid a LPA being invalid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.