The Role of an LPA Certificate Provider

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The Lasting Power of Attorney (LPA) is a vital tool for estate planning. It empowers you to designate trusted individuals (attorneys) to make decisions on your behalf regarding your health, welfare, finances, and assets in the event you become unable to do so yourself. An LPA offers peace of mind, knowing your wishes will be respected, even if you can’t express them directly.

There are multiple steps to follow in the LPA creation process. From submitting an online form and drafting a detailed letter of wishes to appointing attorneys and securing signatures from certificate providers, it’s a long process. However, the steps leading up to an LPA are as important as the LPA itself. 

One such crucial step is appointing an LPA certificate provider. But why is appointing one so important? In this article, we’ll dive deeper into the crucial roles and responsibilities of an LPA certificate provider. 

The Importance of a Certificate Provider in an LPA

The certificate provider is akin to security in the LPA creation process. They are an impartial individual who assists in safeguarding your interests. As the certificate provider, this individual attests to the following critical points:

  • You are creating the LPA out of your own free will
  • You as a donor are not under any pressure or duress to create this LPA
  • You as a donor understand the scope of authority and the purpose of creating an LPA
  • You are mentally capable of creating the LPA

You need a certificate provider for all purposes, whether you’re setting up a health and welfare LPA or a finance LPA. Moreover, you also need to appoint one certificate provider for every LPA you make.

The provider needs to sign and date Section 10 of your LPA. This needs to be done on the same day or after you, the donor has duly signed and dated Section 9 of the LPA.

Conditions for Becoming a Certificate Provider

There are a few important conditions when appointing a certificate provider for your lasting power of attorney. Here are some of them:

  • They must be at least 18 years or older, and 
  • They must be an individual you know well in a personal capacity for a period of no less than 2 years, like a friend, neighbour, colleague or
  • They must be professionals with relevant skills and experience to fulfil the role of a certificate provider, such as a lawyer, barrister, solicitor, or medical professional like a doctor, a nurse, an independent mental capacity advocate, or a registered social worker.

Other Vital Considerations

  • You cannot appoint anyone related to you for this role, be it your relatives or family members. 
  • A certificate provider cannot be your employee, employer or any of your attorneys. 
  • Your witness and any individuals from ‘the people to notify’ can take up this role.
  • Bear in mind, that you cannot appoint any acquaintance as your LPA certificate provider. It needs to be someone who you know well and can have an open and honest conversation about the LPA and their role as a certificate provider. 
  • It would be ideal to have this conversation in private. 

Stages Involved Assessing Capacity as per Mental Capacity Act 2005

After selecting a certificate provider using the mentioned guidelines, the next step is to assess your mental capacity as the donor of the LPA. As per the rules under the Mental Capacity Act 2005, a certificate provider needs to be made aware of the guidelines to implement the 2-stage test for mental capacity.

Here’s how the 2-stage test of capacity works:

Stage 1: The Test for Diagnosis

In this test, the certificate provider assesses if there is an impairment or disturbance in the way in which the donor’s brain functions.

Stage 2: The Test to Check Functionality

In this stage, the certificate provider assesses whether the disturbance or impairment is adequate to attest that the donor lacks the capacity to come to a particular decision.

The certificate provider can assume the donor lacks capacity if:

  • The donor is unable to comprehend the information about a decision,
  • The donor cannot absorb or retain this information,
  • The donor is unable to consider the pros and cons of a decision-making process, or
  • The donor lacks the ability to communicate the decision using any means.

As a donor, you can mention how your mental capacity should be assessed in the preferences and instructions section of the LPA. As this is not a mandatory step, you don’t need to mention any specific instructions if you trust your attorneys’ judgment in assessing your mental capacity.

In Conclusion

From this article, it’s clear how crucial the appointment of a certificate provider can be. They are essential in giving you more control over what happens to you in an unfortunate event where you lose your decision-making abilities. 

By taking these conditions and factors into account, you can make a well-informed decision in your LPA application process. Regardless, if you ever get overwhelmed, remember to seek legal advice from an expert to navigate through the paperwork and requirements.