WillsCase Review: TA v the Public Guardian 2023

This article will cover an overview of the recent case of TA v the Public Guardian [2023] EWCOP 63 which concerns the exact duties of a certificate provider to a lasting power of attorney (LPA).

Background – Certificate Provider Duties

Under Schedule 1, paragraph 2(1)(e) Mental Capacity Act 2005, an LPA is only valid if it includes a certificate signed by a person (the certificate provider) confirming that in their opinion at the time the donor executes the LPA:

• the donor understands the purpose of the LPA and the scope of the authority conferred under it,
• no fraud or undue pressure is being used to induce the donor to create the LPA, and
• there is nothing else which would prevent a lasting power of attorney from being created.

The Case

The donor (KA) originally made an LPA in 2019 appointing all three of her children as attorneys for property and finance. This LPA was revoked in 2020 and the donor created new LPAs for finance and for health in early 2021 appointing her daughter, TA, as sole attorney. The certificate provider of the new LPAs was the donor’s former mother-in-law X.

In September 2021, the donor’s son KA sought to revoke the new LPAs and create new LPAs appointing all three children but the donor was then assessed to not have capacity to create new LPAs.

The OPG investigated the creation of the 2021 LPAs and questioned X on her role as certificate provider, parts of X’s response is included in the judgment below.

Regarding discussions I had with her about the LPAs, I just asked her if she was happy about it, and she was. I spoke to her about it on the phone, and I expect her partner was in the room with her during the conversation. I do not feel [KA] was under any pressure to make the LPAs as she sounded cheerful and was in good spirits. She sounded like her normal, usual self. [KA] did not express any particular wishes to me about who she wanted to be her attorneys. She did not express any wishes about how her attorneys should act. [KA]’s daughter [TA] has always been a wonderful, caring daughter to her mum They have always had a loving, close relationship. Sue has always acted in her mum’s best interests. I find it shocking that [TA]’s care for her mum is being questioned, as she has only ever been an amazing daughter to [KA].

Following its investigation, the OPG issued an application to cancel the LPAs on the basis that they were invalid.

In the first instance, the judge concluded that there are aspects of the MCA which gives clear guidance on what is expected of a certificate provider and stated that the certificate provider is required to provide an opinion that the requirements of Schedule 1, paragraph 2(1)(e) have been satisfied and not to just simply witness a signature. There was little evidence that the requirements to create an LPA had been met and is limited to simply asking and answering “are you happy with the LPA”?

TA appealed the first instance decision on the basis that paragraph 2(1)(e)’s only requirement was the provision of the certificate and does not state that the certificate provider has to provide an opinion.

Decision

The appeal was dismissed and held that the approach in the first instance was correct with the judge providing the following comments.

Paragraph 2(1)(e) requires the provision of the certificate, and requires that certificate to have particular content, in that the certificate provider has an opinion on the three specific matters. A valid certificate must therefore be based on an opinion of those matters.

The Court is entitled to check that the opinion has been formed. Simply providing a certificate on its own cannot be sufficient and the argument of TA that the Court can only look at the existence of a certificate was not accepted.

A certificate is an important part of the procedure to ensure that a valid LPA has been created. Paragraph 2(1)(e) does not merely concern whether the donor has capacity and also provides important safeguards for the donor and is an important part of the process of creating a valid LPA.

Comment

The case highlights the importance of following the correct procedure when creating an LPA. It reminds us of the importance of the role of certificate provider and that its role is not simply to provide a signature, but also act as an important safeguard. If a challenge to an LPA is made, the court will investigate to ensure that the certificate provider complied with all of their duties. In the event that they have not, the LPA will be invalid.

If you are acting as a certificate provider, you should ensure that you ask questions to ensure that you form an opinion on the three matters of paragraph 2(1)(e) and keep detailed attendance notes on questions you have asked, answers provided and why this provided you with the opinion that the matters of paragraph 2(1)(e) have been satisfied. If a non-professional is acting as certificate provider, advice should also be provided to them to assist them in completing their duties.

WillPack will provide a form to our partners in due course to assist with this.

 

 

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