Can co-workers be certificate providers and attorneys to a Lasting Power of Attorney?

This article reviews the role of certificate providers in signing Lasting Powers of Attorney (LPAs) and explores whether a certificate provider can sign where a co-worker is acting as an attorney under the same LPA.

What is a certificate provider?

A certificate provider is an impartial person who confirms that the donor of an LPA knows what they are doing by making an LPA and is not being forced to make it. By signing the LPA, the certificate provider is confirming that the donor understands the significance of the LPA, has not been put under any pressure to make it, no fraud has been committed in making the LPA and there is no other reason for concern.

Who can be a certificate provider?

A certificate provider must be at least 18 years old. They must be either a friend or someone the donor has known well for at least two years, or a doctor, lawyer or someone with the professional skills to judge whether the donor understands what they are doing by making the LPA.

Who cannot be a certificate provider?

A certificate provider cannot be one of the following:

• An attorney or replacement attorney for the LPA or any other LPA or Enduring Power of Attorney that has already made by the donor;
• A member of the donor or the certificate provider’s family;
• An unmarried partner, boyfriend, girlfriend of the donor or the certificate provider;
• The donor’s business partner or one of the attorney’s business partners;
• The donor’s employee or one of the attorney’s employees;
• An owner, manager, director or employee of a care home where the donor lives, or a member of their family; or
• Anyone running or working for a trust corporation appointed as an attorney in a financial decisions LPA.

The restriction against business partners and employees is covered by regulation 8(3)(f) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007.

Business partners and employees

Issues may arise where the attorney and certificate provider are partners at the same business. Similarly, issues may arise if the attorney is a partner at a business, and the certificate provider is an employee of that business, or the other way around. These issues derive from the meaning of “partner”.

In the matter of Re Putt (2011), one of the points of law in question was whether the certificate provider was disqualified from acting. The donor appointed a family member and two solicitors to be her attorneys. The solicitors were partners at a limited liability partnership (LLP) and the certificate provider was an associate at the same LLP. The issue was whether the associate could be the certificate provider when the attorneys were partners of the LLP that employed her.

The LLP argued that employees are employees of the body corporate and not employees of the individual partners. The LLP also said that the associate solicitor could not be considered to be a business partner of the partners.

However, it was decided that ‘business partner or employee’ are “ordinary words of the English language and should be construed in the way that an ordinary sensible person would construe them”. The court assumed that it is parliaments intention to look at the “substance rather than the form” and intended the definition of ‘business partner’ under regulation 8(3)(f) to include all forms of partners, including equity partners, salaried partners and fixed-share partners. If Parliament had intended to treat LLPs differently to common law partnerships, it would have said so in the Limited Liability Partnership Act 2000 and the Partnership Act 1890.

The court referred to the certificate provider’s statement in the LPA confirming that they are acting independently of the donor and attorneys and with reference to Tiffin v Lester Aldridge, decided that the employee was not an “independent” contractor. Accordingly, the court held that the employee could not act as certificate provider and the LPAs were not registered. 

The decision in Re Putt that regulation 8(3)(f) includes all forms of partners, suggests that partners of the same LLP cannot be attorneys and certificate provider to the same LPA, even if one is an equity partner and the other is a salaried partner. The judgement also suggests that employees and partners of the same LLP cannot be attorneys and certificate provider to the same LPA, regardless of whether the partners do in fact employ the employee.

Re Putt highlights the importance of carefully considering who to appoint as attorneys and certificate provider, particularly where the donor is appointing partners and employees of the same business. It also shows that independence from the donor and attorneys is key when deciding whether a certificate provider can act.

Our private client team is experienced in all types of matters relating to LPAs. If you have any questions about this article or would like advice on LPAs, please do not hesitate to contact Catherine Pugsley at Catherine.Pugsley@LBMW.com or Beatrice Lewers at Beatrice.Lewers@LBMW.com.