My aunt wishes to execute a lasting power of attorney. Can I be her certificate provider as required by Sch 1.2(1)(e) of the Mental Capacity Act 2005?
Regulation 8 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 sets out the persons who may provide an LPA certificate.
Under Regulation 8(3), a person is disqualified from giving an LPA certificate in respect of any instrument intended to create a lasting power of attorney if that person is:
"(a) a family member of the donor ..."
'Family member’ is not defined in the Act or the Regulations.
The LPA form LP1F at section 10 states that the certificate provider must not be (among others) "a member of the donor’s family or one of the attorneys’ families, including husbands, wives, civil partners, in-laws and step-relatives".
It would be advisable, in the circumstances, not to be the certificate provider and to refer your aunt to a suitable person who can act as a certificate provider.
There are two types of certificate provider:
- a ‘knowledge-based’ provider – someone who has known the donor personally for at least two years, such as a friend, neighbour, colleague or former colleague
- a ‘skills-based’ provider with relevant professional skills – such as the donor’s GP, a healthcare professional or a solicitor, who can show relevant expertise in determining mental capacity
Skills-based providers can charge a professional fee for providing the certificate.
For more information, see our practice note on lasting powers of attorney and the Office of the Public Guardian’s guidance leaflet LP12 or contact the Practice Advice Service.
While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.
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