Lasting powers of attorney (LPAs) allow you to appoint someone else to make decisions in respect of your property and financial affairs, and/or your health and welfare, in the event that you lose the capacity to do so yourself. However, an LPA must comply with the requirements of the Mental Capacity Act 2005 in order to be valid. In a case that clarified the duties of those who provide certificates for LPAs, the Court of Protection rejected an appeal against a decision that two LPAs were invalid.
A 92-year-old woman had made a property and affairs LPA in 2019 naming all three of her children as attorneys. She revoked that LPA about a year later, then in 2021 she made a further property and affairs LPA and later a health and welfare LPA, both of which named her daughter as sole attorney. A family friend who was the daughter's ex-mother-in-law was the certificate provider for the LPAs.
One of the woman's sons instructed solicitors with a view to revoking the LPAs and executing new LPAs in favour of all three children. After a solicitor who visited the woman concluded that she lacked capacity to make an LPA, the Office of the Public Guardian (OPG) undertook an investigation into the making of the LPAs in favour of her daughter. The woman told a Court of Protection Visitor that she wanted all three of her children to make decisions together, and could not explain why she had made LPAs in favour of only her daughter.
The LPAs were subsequently found by a judge to be invalid. The judge ruled that, under Paragraph 2(1)(e) of Schedule 1 of the Act, a certificate provider is required to provide an opinion that the person making an LPA understands its purpose and the scope of the authority conferred under it, no fraud or undue pressure is being used to induce the person to create an LPA, and there is nothing else that would prevent an LPA from being created. The certificate provider must satisfy themselves that that opinion is reasonably held. The ex-mother-in-law had simply asked if the woman was happy with the LPAs: as such, the requirements of the Act had not been met.
Appealing against that decision, the daughter argued that the only requirement under Paragraph 2(1)(e) was for the provision of a certificate, and the judge had been wrong to find that an opinion was needed. She claimed that the judge's approach undermined the presumption that someone making an LPA has capacity. The OPG contended that, if the daughter were correct, it would be impossible to make any enquiry about a certificate provider's opinion.
Noting that the case was one of statutory interpretation, the Court observed that Paragraph 2(1)(e) requires that the certificate have particular content, namely that the certificate provider has an opinion as to three specific matters. A certificate is an important part of ensuring that a valid LPA has been made, and Paragraph 2(1)(e) exists to provide safeguards in relation to the matters listed. The judge's approach was therefore correct.