The recent Court of Appeal case of TA v The Public Guardian potentially calls into question a vast number of Lasting Powers of Attorney (LPAs) where the “Instrument is not made in accordance with [the rules] unless [the] prescribed requirements in connection with its execution are satisfied”.
In this case, a 92 year old mother, Mrs A, who lived in a care home had previously appointed her three children as her attorneys on a joint and several basis. The following year, she purportedly revoked the LPA and later made new LPAs appointing only one of her children as sole attorney. The Certificate Provider for these new LPAs was a friend of Mrs A and the ex-mother-in-law of the attorney.
One of Mrs A’s other children subsequently instructed solicitors with a review to Mrs A revoking these new LPAs and executing new ones, in favour of all three children. The solicitors, however, formed the opinion that Mrs A lacked mental capacity to execute new LPAs.
There was an investigation by the Office of the Public Guardian (OPG) in the making of the LPAs appointing only one of the children and the Court of Protection suspended the LPAs whilst the investigation was carried out.
The OPG investigator asked the Certificate Provider various questions about the execution of the LPA. The Certificate Provider replied that “she had known Mrs A for over 50 years and she has been my friend for all of that time…I just asked her if she was happy about [making the LPAs] and she was. I do not feel that Mrs A was under any pressure to make the LPAs as she sounded cheerful and was in good spirits … She sounded like her normal self and did not express any particular wishes to me about who she wanted to be her attorneys…”
A Court of Protection visitor attended upon Mrs A and amongst other comments Mrs A said “I want all three to agree on decisions”. Mrs A could not remember any reason for only appointing one of her children as her attorney and said that she was happy for all three of her children to have this responsibility.
The Court of Appeal upheld the first instance decision and did not uphold the LPAs. The Appeal Judge forming the opinion that the first instance judge had rightly concluded that the Certificate Provider had not fulfilled her obligations to satisfy herself that the key requirements stated in the Mental Capacity Act 2005 regarding Mrs A’s understanding and lack of undue pressure or fraud had been met. Consequently, the LPAs were invalid.
At the point of registration, the Public Guardian merely looks to the requirements of the execution of the LPA document being met. Reliance is placed on the Certificate Provider having dealt with all of the criteria of their role as Certificate Provider in accordance with the Mental Capacity Act 2005.
This judgment potentially brings into question a huge number of LPAs where notwithstanding the donor had the requisite mental capacity at the time of signing the LPA, if the Certificate Provider did not fulfil the obligations of the Mental Capacity Act and could not satisfactorily answer the Public Guardians questions then the LPA could well be invalid. Furthermore, by the time this is discovered, the donor may have lost mental capacity and can no longer do new LPAs.
Notwithstanding that it is entirely possible to create LPAs without the assistance of a solicitor or other legal professional, is it worth taking the risk that they are not valid documents due to the Certificate Provider not applying the correct criteria? Further is it fair to put the onus on a friend or colleague to ensure that such an important legal document is valid?
The role of the Certificate Provider is not merely a witness but must adequately cover off the criteria required under the Mental Capacity Act 2005 before acting and signing the LPAs as such. Solicitors and Chartered Legal Executives are trained in the requirements of the Mental Capacity Act 2005 for acting as the Certificate Provider for an LPA. Many are also members of the Society of Trust and Estate Practitioners who undergo further training in this specialism.
For more information on making Lasting Powers of Attorney please get in touch with Ann-Marie Aston on 0121 733 800 or [email protected].
