British Journal of Nursing - The role of a certificate provider for a lasting power of attorney

Alasting power of attorney (LPA) is a legal instrument that allows an individual (the donor) to designate another person (the attorney) to make decisions on their behalf in the event they lose capacity (Griffith, 2024). As part of creating and executing an LPA, a certificate provider is required and plays a key role in confirming that the donor has understood the purpose and implications of the LPA, and that the decision to execute an LPA has been made free from undue duress (Mental Capacity Act 2005, schedule 1 paragraph 2(1)(e)). Registered nurses, who are often in a position to act as a certificate provider, must understand the requirements of the role to ensure that the person's autonomy and human rights are protected.

This article considers the role of the certificate provider and outlines the duties of the role and the implications for nurses undertaking the role under the Mental Capacity Act 2005.

Lasting powers of attorney

The Mental Capacity Act 2005 enables an individual (the donor) to give authority to one or more people (the attorneys) to make decisions on their behalf concerning their health, welfare, property or financial affairs. There are two main types of LPAs:

Health and welfare LPA, informally referred to as a health and care LPA: this grants authority to attorneys to make decisions regarding health care, living arrangements and other personal welfare issues when the donor lacks capacity to make the decisions themselves

Property and financial affairs LPA: allows attorneys to manage financial matters and property on behalf of the donor. It can be executed on the basis that it applies whether or not the person has capacity to make the decision or, in restricted situations, where the person lacks capacity to make the decision themselves.

In both cases, the LPA must be created in accordance with the requirements of schedule 1 of the Mental Capacity Act 2005 and be registered with the Office of the Public Guardian before it is effective and can be used.

Role of the certificate provider

A certificate provider is an independent person who certifies that, at the time of making the LPA, the donor had the capacity to make the decision, understands the implications of making and executing the instrument, and is not under duress. A certificate provider must be either:

A person who has known the donor for at least 2 years, such as a friend or neighbour or

A professional with the appropriate skills and knowledge of the person to assess mental capacity, such as a registered nurse, social worker or physician (The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, regulation 8(b)).

Duties of a certificate provider

Nurses acting as certificate providers must understand the duties of a certificate provider that are outlined under schedule 1 of the Mental Capacity Act 2005:

Assessment of mental capacity: the certificate provider must assess whether the donor has the capacity to create an LPA. This involves determining whether the donor can understand, retain, use, or weigh the relevant information and communicate their decision. The Court of Protection in The Public Guardian v RI and others [2022] revoked an LPA and held the certificate provider's mental capacity assessment was inadequate as it had not considered the impact of the person's impairment on the person's ability to make a decision about executing an LPA

Ensuring voluntariness: the certificate provider must confirm that there is no coercion or undue influence in the decision to create the LPA. This requires the nurse to meet the person, preferably in private, to ensure there are no identifiable signs of undue pressure or manipulation from the prospective attorneys or others

Completing the certificate: the certificate provider must complete part B of the LPA form, certifying that the donor understands the LPA and that no undue influence is present, there is no suggestion of fraud and that there is nothing else that would prevent the LPA being executed. This must be done after the donor signs the LPA but before the attorney does.

Legal and professional implications

Registered nurses acting as certificate providers must strictly adhere to the requirements of the Mental Capacity Act 2005 and related regulations, including the Lasting Power of Attorney Regulations 2007.

In TA v Public Guardian [2023] the crucial role undertaken by certificate providers and the consequences of failing to fully discharge the role was highlighted by the Court of Protection. In the case, the court revoked an LPA because the certificate provider failed to adequately assess the donor's capacity and independence from undue influence. The court held that they could not see how the certificate provider could have discharged their duties by simply asking the person if they were happy with the LPA.

The certificate provider must provide a written opinion on:

The person's capacity to make the LPA

Whether or not there is undue influence or

There is anything else to prevent the LPA being created.

Failure to provide this means it will not meet the legal requirements for an LPA and will lead to the LPA being revoked. Certificate providers must ensure they are being objective when applying the requirements of schedule 1 of the Mental Capacity Act 2005. Providing an opinion on those three requirements set out in schedule 1, paragraph 2(1)(e) of the 2005 Act is essential and that opinion must be recorded.

Nurses acting in the role must also avoid any suggestion of a conflict of interest, such as being related to the donor or attorney, or benefitting from the LPA. Acting as a certificate provider where a conflict of interest exists not only breaches ethical standards but may also result in disciplinary measures from the Nursing and Midwifery Council (NMC). The NMC Code (2018) requires nurses to ensure that their actions prioritise people by always acting in that person's best interests and to remain within the boundaries of the nurse's competence. Acting as a certificate provider requires the exercise of professional judgement, and failure to fulfil the certificate provider requirements could result in a fitness to practise investigation by the NMC.

Maintaining records

Nurses serving as certificate providers should meticulously document and keep their assessments and opinions on undue influence and other matters that might prevent the registration of the LPA. These records will be essential if the validity of the LPA is later questioned. In The Public Guardian v RI and others [2022] the validity of an LPA was challenged some 9 years after it was registered.

Practical steps for nurses acting as certificate providers

There are some important steps that nurses should take before agreeing to act as a donor's certificate provider. Nurses must be satisfied that they:

Understand the LPA form and requirements by familiarising themselves with the contents of the LPA document they are to provide the certificate for and seek clarification where needed

Assess the donor's capacity: apply the guidance of the UK Supreme Court in A local authority v JB [2021] by carefully formulating the decision the person has to make so that the nurse is able to determine the salient details the person needs to understand, retain, weigh and communicate for capacity to create a lawful LPA

Ensure a safe space: the assessment should be conducted in an environment where the donor feels comfortable and free from external pressures. Conducting the assessment privately can help ensure that the donor is expressing their own wishes, free from undue pressure

Confirm the donor has read the LPA form so they are aware of its purpose and the powers being given to the attorney

Document everything: maintain detailed records of the assessment, including questions asked, the donor's responses, and any observations regarding their demeanour. These notes are crucial to demonstrate that the assessment was properly conducted, and the duties of the certificate provider were properly and objectively discharged in accordance with the Mental Capacity Act 2005

Seek advice: if there are any doubts regarding the donor's capacity or concerns about undue influence, it is prudent to seek advice before proceeding. Nurses must err on the side of caution and decline to act as a certificate provider if uncertainties persist.

Conclusion

Registered nurses considering undertaking the role of a certificate provider for a lasting power of attorney must understand the duties and implications of the role. The duties go beyond a mere formality. It requires the exercise of professional judgement in reaching an opinion on three matters set out in the 2005 Act that are essential to the lawfulness of an LPA: the donor's capacity to make an LPA, the absence of undue influence and anything else that might prevent the LPA being registered. Failure to discharge these duties can invalidate the LPA and this can occur many years after registration.

KEY POINTS

A certificate provider is an independent person who certifies that the donor has capacity, is free from duress and there is nothing else to prevent the Lasting Power of Attorney (LPA) being registered

Nurses can act as certificate providers as they are prescribed persons for the purpose in schedule 1 of the Mental Capacity Act 2005

Nurses serving as certificate providers must keep meticulous records of how they reached their opinions on capacity, undue influence and matters that might prevent the registration of the LPA

Failure to discharge these duties can invalidate the LPA or result in its revocation by the Court of Protection