Alex RKIn a case from December 2023 which arrived on Bailii too late for the February 2024 Mental Capacity Report, Lieven J has confirmed something which might have been thought obvious: namely that a certificate provider must actually engage their brain when they are deciding whether they can complete a certificate that, in their opinion, at the time when the donor executes the instrument:
(i) the donor understands the purpose of the instrument and the scope of the authority conferred under it,
(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.
(paragraph 2(1)(e) of Schedule 1 to the MCA 2005)
The (perhaps slightly surprising) argument advanced on appeal to Lieven J in TA v The Public Guardian [2023] EWCOP 63 was that, in the event that the court was being asked to exercise its powers under s.22 MCA 2005 to determine whether one or more requirements for the creation of an LPA have been met, it would suffice simply for the certificate to be provided. The first instance judge (HHJ McCabe) had held that the ‘ordinary words’ of paragraph 2(1)(e)
38. […] plainly requires the certificate provider, in order to provide the certificate, to take some steps to satisfy themselves of the matters set out in section 2 (e), otherwise they cannot be considered validly to provide the opinion. This opinion is one of the requirements for the creation of an LPA, and what is required is the provision of an opinion, not merely the witnessing of a signature.
39. If the Court is asked, as I am, to exercise its powers under section 22 of the MCA, namely to ‘determine whether one or more of the requirements for the creation of a LPA have been met’, it follows that the Court must be entitled to look for evidence that the requirements have been met. Such evidence has manifestly not been provided in the current case, limited as it is to simply the asking and answering of a question “are you happy with the LPA”?
Lieven J agreed, holding that:
29. Paragraph 2(1)(e) requires the provision of a certificate, but it also requires that certificate to have particular content. The content is that the certificate provider has an opinion as to three specific matters. Therefore, on a pure black letter law approach, a valid certificate must be based on an opinion as to those three matters. If the evidence showed that the certificate provider did not have such an opinion because, for example, they had not spoken to the donor, then there would not be a valid opinion.
30. It therefore follows from the words themselves that the Court is entitled to check that the requisite opinion has actually been formed. If this stage of the analysis is not accepted, and Ms Collinson’s argument is taken at its highest, then paragraph 1(e) becomes a nonsense. The mere provision of a certificate in the right form cannot be sufficient on its own.
31. I do not accept Ms Collinson’s submission that the Court can only look at the existence of the certificate and no more. For the certificate to meet the requirement of the MCA it must be a certificate as to the matters in paragraph 2(1)(e). This follows from the terms of s.22, which allows the Court to determine whether any of the requirements for the creation of the LPA have been met.
32. It is then necessary to consider the statutory context and the mischief being addressed. The certificate is an important part of the procedure to ensure that a valid LPA has been entered into. The nature of the scheme is that validity turns not merely on the provision of certain documents, but that those documents themselves provide reassurance on a number of key matters. The whole purpose of the MCA is to make provision for the protection of those who have lost mental capacity, or who may do so, as we all may, in the future. The latter issue is dealt with, inter alia, through the making of Lasting Powers of Attorney. Those documents are of the utmost importance in the making of future decisions for people who subsequently lose capacity.
33. Paragraph 2(1)(e) does not merely concern whether the donor has capacity. It is also there to provide some safeguards that the donor understands the instrument, is not subject to fraud or undue pressure and there are no other barriers to the LPA. Plainly these matters go beyond capacity. The donor might have capacity, but not actually have read the LPA and therefore not understand its purpose or scope. This would not later be grounds to set aside on the basis of lack of capacity, but is an important safeguard in the process.
34. The scheme of the MCA, and paragraphs 2(1)(e) also gives protection to the donor at the stage of making the LPA. Although the power to set aside exists in s.22, in practice that power rests on someone raising the issue of validity after the making of the LPA. In many cases such an issue will not be raised, perhaps because there is no other person concerned and the OPG is not aware of the circumstances. Therefore the power in s.22 does not mean that a purposive and careful approach should not be taken to the safeguards in paragraph 2(1)(e).
Lieven J’s judgment is an important and helpful reminder not just of the position if the case comes to court, but also of the duties on the certificate provider. It is also of note that Lieven J appeared to take it as read that the certificate provider is considering the donor’s capacity (as had Poole J in The Public Guardian v RI & Ors [2022] EWCOP 22 (see paragraph 27)). Proposals to amend the MCA 2005 to put this beyond doubt during the passage of the Powers of Attorney Act 2023 did not see fruit, but as the secondary legislation and – above all – the forms (including the digital forms) are being worked up to enable the Act to come into force, it will be interesting to see what can be done to ensure that (1) certificate providers are aware of the duties upon them; (2) are supported to engage their brains; and (3) to record the contemporaneous evidence of such.
