LEGAL EAGLE: Rules change for evidence provided by certificate providers for Lasting Powers of Attorney

By Andrew Freckleton
Published 14th May 2024, 08:00 BST
The case of TA v The Public Guardian was heard at The Court of Protection.The case of TA v The Public Guardian was heard at The Court of Protection.
The case of TA v The Public Guardian was heard at The Court of Protection.
Following the recent case of TA v The Public Guardian, the rules governing the evidence which needs to be provided by certificate providers for Lasting Powers of Attorney (LPAs) have changed.

A certificate provider is an independent person who will confirm that you are indeed making the LPA of your own free will, that you understand the implications of what you are doing, and that you have the necessary mental capacity to do this.

They can either be someone who you have known for more than two years who is not related to you, or they can be a professional like a solicitor, GP, or social worker.

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For an LPA to be valid, the law states that the certificate provider must confirm the following: that the person making the LPA understands the purpose and scope of the LPA, that they are not subject to any fraud or undue pressure to create it, and that there is nothing else to prevent the LPA being made.

The upshot of the recent case of TA is that the court decided that any certificate provider must provide evidence to support these three factors – this places a higher burden on anyone who is looking to be a certificate provider who is not acting in a professional capacity – it means that certificate providers should in practice be meeting with the person wishing to make the LPA in person, and be asking specific questions about their understanding of the agreement and the thought process behind their decision to make an LPA.

In short, the decision in this case means that providing a certificate for LPAs as a lay person carries significantly more risk – there is a much greater chance now that any LPA will be deemed to be invalid if the proper evidence cannot be provided by the certificate provider.

If you are seeking to make an LPA and are worried about the changes in the rules regarding certificate providers, please contact us on 0191 565 3112 or email [email protected] for advice.