Considering the validity of existing LPAs – TA v The Public Guardian [2023] EWCOP 63

The recent decision in TA v The Public Guardian [2023] EWCOP 63 has called into question the validity of existing Lasting Powers of Attorneys (LPAs). The case has the potential to render existing LPAs invalid even in circumstances where the capacity of the donor is not an issue in dispute. It also provides a cautionary tale for certificate providers to make sure they understand their role to safeguard the donor’s interests.

Lasting Powers of Attorneys in a nutshell

An LPA is a legal document by which a person (the donor), gives another person or persons (the attorneys) authority to make certain decisions on their behalf. There are two types of LPAs, Property and Financial Affairs and Health and Welfare.

Role of certificate provider

Before an LPA can be registered with the OPG, it must first be signed by a certificate provider whose role is to certify that the donor understands the significance of the LPA and that it is being made of the donor’s own free will.

The certificate provider must have known the donor for at least two years or be a relevant professional who has the required skills to make this judgement.

The recent case of TA v the Public Guardian, states that the validity of existing LPAs may be questioned on the basis that they have been incorrectly certified by certificate providers.

The case of TA v The Public Guardian

This case concerned a donor who originally appointed her three adult children as attorneys on a joint and several basis under a property and financial affairs LPA.

A year later this was revoked and the donor then made LPAs covering both property and financial affairs and health and welfare appointing only one child, her daughter as the sole attorney.

The validity of the existing LPAs was called into question when one of the donor’s children instructed a solicitor with a view to revoking the current LPAs in favour of new ones. However it was determined that the donor lacked mental capacity to execute new LPAs.

The role of certificate provider within the current LPA, was undertaken by a long-standing friend of the donor who had known her for over 50 years. Despite believing that the donor had mental capacity in ordinary terms to make the LPA, it was determined that the certificate provider had not gone far enough to ensure the key requirements under paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act 2005 were met:

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

An investigation determined that the donor had expressed a previous wish for all three of her children to be attorneys and to act on her behalf. She could not remember or provide any reason for only appointing her daughter in the most recent LPAs.

The case concluded that the certificate provider had done little more than witness a signature and had not provided any opinion. Therefore, it was upheld that the LPAs were invalid and should be cancelled.

Next steps

The judgement in this case highlighted the significance of the role of a certificate provider and their duties to ensure that the donor fully understands the purpose of the LPA and its significance.

The role of a certificate provider is to safeguard and not merely confirm that the donor has capacity.

As a result of this case, certificate providers should approach undertaking this role with caution and must satisfy themselves that they understand the requirements of their role to safeguard the donors’ interests.