At Blackstone Solicitors, we regularly assist clients across England and Wales with setting up Lasting Powers of Attorney (LPAs). One common question we encounter concerns the roles of a certificate provider and a witness in the LPA process. Specifically, people often ask whether the same person can act as both the certificate provider and a witness.
To answer this question, it’s important to first understand the roles of the certificate provider and the witness, as well as the legal requirements involved in completing an LPA. This article will explain these roles in detail and clarify whether one individual can serve both functions.
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What Is a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney (LPA) is a legal document that allows a person (the ‘donor’) to appoint one or more individuals (known as ‘attorneys’) to make decisions on their behalf if they lose mental capacity. There are two types of LPAs:
- Property and Financial Affairs LPA – This allows the appointed attorney to make decisions regarding the donor’s finances, such as managing bank accounts, paying bills, selling property, and handling investments.
- Health and Welfare LPA – This grants the attorney the authority to make decisions about the donor’s health and personal welfare, including medical treatment, living arrangements, and decisions about life-sustaining care.
Creating an LPA involves various legal formalities to ensure that the document is valid and that the donor’s wishes are followed. Two important roles in this process are the certificate provider and the witness.
What Is a Certificate Provider in an LPA?
The certificate provider plays a crucial role in the LPA process. Their job is to confirm that the donor understands what the LPA is and what powers they are giving to their attorney(s). Additionally, the certificate provider must confirm that the donor is not being forced or coerced into making the LPA and that they have the mental capacity to make the decision.
The certificate provider provides an essential safeguard in the LPA process, ensuring that the donor is acting voluntarily and with full understanding of their actions.
Who Can Be a Certificate Provider?
To ensure impartiality and protect the donor, there are specific rules governing who can act as a certificate provider. The person acting as the certificate provider must fall into one of two categories:
- Someone who has known the donor personally for at least two years – This could be a friend, colleague, or neighbour, but they must not be someone who benefits from the LPA (such as an appointed attorney) or someone closely related to the donor.
- A professional with the appropriate skills or qualifications – This could include a GP, solicitor, or other professional who can assess whether the donor understands the LPA and has the mental capacity to make it. They do not need to have known the donor for two years but must have the expertise to evaluate their mental capacity.
Restrictions on Certificate Providers
It’s important to note that certain individuals are prohibited from acting as certificate providers to avoid conflicts of interest or undue influence. These include:
- The attorneys appointed in the LPA – As they stand to gain authority over the donor’s affairs, attorneys cannot act as certificate providers.
- Relatives of the donor or attorneys – Close relatives, including spouses, children, and other immediate family members of either the donor or the attorney, cannot serve as certificate providers.
- Anyone who benefits financially from the LPA – This includes anyone who stands to gain financially from the donor’s estate or assets, as they could have a vested interest in the creation of the LPA.
The role of the certificate provider is integral to safeguarding the donor’s interests and ensuring the LPA is valid. Once they have confirmed the donor’s understanding and voluntary participation, they must sign the LPA form in the designated section.
What Is the Role of a Witness in an LPA?
The role of a witness in the LPA process is different from that of the certificate provider. The witness is there to confirm the authenticity of signatures made on the LPA form. In particular, a witness is required to verify that:
- The donor’s signature is genuine.
- The attorney(s) have signed the form.
A witness must be physically present when the donor or attorney signs the LPA form. They will then add their own signature to confirm that they have seen the signing take place.
Who Can Be a Witness in an LPA?
The rules regarding who can act as a witness in an LPA are less strict than those for the certificate provider. In general, the witness can be anyone over the age of 18 who is not directly involved in the LPA. For example, they cannot be:
- The attorney or attorneys named in the LPA.
- A replacement attorney listed in the LPA.
- The donor.
However, unlike the certificate provider, a witness does not need to have known the donor for any particular period or hold any special qualifications. A neighbour, friend, or colleague could serve as a witness, provided they are present when the LPA is signed and are not disqualified by the rules mentioned above.
Can the Certificate Provider Be a Witness?
Now that we’ve established the roles of both the certificate provider and the witness, we can address the question: Can the certificate provider also act as a witness?
The answer is yes, the certificate provider can act as a witness to the donor’s signature. There is no legal rule preventing the certificate provider from witnessing the donor’s signature on the LPA form. This can sometimes be convenient, particularly if the certificate provider is a professional such as a solicitor, who may be assisting with the completion of the LPA document.
However, there are a few important points to keep in mind:
- While the certificate provider can witness the donor’s signature, they cannot act as a witness for the attorney’s signature. This is because it’s important to have a level of independence when it comes to the signing of the LPA. It ensures that no one individual holds too much influence or control over the LPA process.
- The certificate provider must meet all the eligibility requirements as outlined above. If the person serving as the certificate provider does not qualify under the rules (for example, if they are closely related to the donor or the attorney), they would also be disqualified from acting as a witness.
- Both the witnessing and certificate roles must be carried out with integrity and impartiality. Even though the certificate provider can act as a witness, they must still ensure that they fulfil both duties carefully and separately.
Practical Considerations for Completing an LPA
When setting up an LPA, it is crucial to ensure that all the signatures and formalities are properly completed, as any errors or omissions can result in delays or rejection when registering the LPA with the Office of the Public Guardian (OPG).
Here are some practical tips to keep in mind:
- Plan the signing carefully: If the certificate provider is also acting as a witness for the donor’s signature, ensure they are present at the right time and location. Make sure a different person is available to witness the attorney’s signature.
- Check eligibility: Before appointing someone as a certificate provider or witness, double-check that they meet the eligibility criteria. This is particularly important if the individuals are friends or family members, as they might not realise they are disqualified due to their relationship to the donor or attorney.
- Seek legal advice: Completing an LPA can be complex, especially when dealing with issues like mental capacity and conflicts of interest. Solicitors, such as our team at Blackstone Solicitors, can guide you through the process to ensure the document is correctly drafted, signed, and witnessed.
What Happens If the LPA is Not Signed Correctly?
If the LPA is not signed correctly or if the wrong person acts as a witness or certificate provider, the document may be rejected by the Office of the Public Guardian (OPG) when you apply to register it. This can cause significant delays and may require you to restart the process, potentially incurring additional costs and time.
By ensuring that the right people act as certificate providers and witnesses, and that all signatures are collected properly, you can avoid common pitfalls and ensure that your LPA is registered smoothly and efficiently.
At Blackstone Solicitors, we have extensive experience assisting clients across England and Wales with creating and registering Lasting Powers of Attorney. Whether you are appointing an attorney, serving as a certificate provider, or simply need guidance through the signing process, our team of expert solicitors can offer tailored advice to ensure that your LPA is legally valid and reflects your wishes.
We can help you understand the roles and responsibilities involved in an LPA, guide you through selecting the right certificate provider and witnesses, and ensure that your LPA is correctly completed and registered with the Office of the Public Guardian.
Conclusion
In summary, the certificate provider in an LPA can also act as a witness to the donor’s signature, provided they meet the eligibility criteria and follow the legal requirements. However, they cannot witness the attorney’s signature, and care must be taken to ensure that all parties involved in the process act in line with their respective roles.
By following the correct procedures and seeking professional guidance when needed, you can ensure that your LPA is properly executed and protects your interests in the future.
How we can help
We have a proven track-record of helping clients create a lasting power of attorney. This also includes all the different types, even if you need more than one. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting.
How to Contact Our Wills and Probate Solicitors
It is important for you to be well informed about the issues and possible implications of creating a Lasting Power of Attorney. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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