Certificate Providers, Competence to Act and the Perils of the “Do Not Date” Culture.
1 October 2026
- Judgment was today handed down in relation to 3 cases heard together before HHJ Hilder in the Court of Protection (‘COP’). The full judgment can be read by clicking the following link here.
- The Applications were made by the Public Guardian and related to the validity of Lasting Power of Attorney instruments (‘LPAs’) for Property and Financial Affairs and Health and Welfare, for 3 individual donors. Robert Cornford (‘RC’) acted as their certificate provider (‘CP’). The cases were test cases for 24 other individual donors arising from similar circumstances. I was instructed by the Public Guardian (PG’).
- The applications were brought on three distinct grounds:
a. RC was not competent to act as a CP.
b. RC had not in fact satisfied himself of the matters which a CP is required to certify.
c. The process of execution did not comply with the statutory requirements for creating a valid LPA. - One of the donors had lost capacity since the LPAs had been executed and an interim deputyship order was in place. The other two donors still had capacity but wanted the court to determine the issues. After hearing evidence and submissions, HHJ Hilder upheld all three grounds advanced by the PG and concluded that the LPAs were invalid. She directed that their registration be cancelled by the PG.
Background Facts - The case arose after a civil judge (in an unrelated matter) wrote to HHJ Hilder after discovering that RC had acted as a CP having been convicted of fraud. The Office of the PG investigated, and it was confirmed that RC, under his previous name of Robert Pannell, had a conviction for Fraudulent Trading contrary to Section 993(1) of the Companies Act 2006. He had been sentenced to 5 years imprisonment on 6 December 2013. He was also disqualified from being a director.
- After his release from prison, RC changed his name and became a self-employed will writer and estate planner at The Will Writing Partnership. RC gave evidence that he received training relating to LPAs and Wills from The Will Writing Partnership, and in particular from Anthony Brinkman.
- RC subsequently worked at Trusted Wills and Estate Planning where he was a director in breach of a disqualification order and an undertaking given by him to the insolvency service.
- Anthony Belcher, Managing Director of The Society of Will Writers confirmed that RC was an affiliate member for The Will Writing Partnership and a full member with Trusted Wills and Estate Planning limited. Mr. Belcher confirmed to the OPG that RC was a member of The Society from June 2020 – January 2023. He said that the membership was then cancelled by RC following a consumer complaint where RC did not want to comply with the terms of an investigation. Mr. Belcher did not disclose the nature of the complaint to the OPG, although according to RC’s evidence, it would appear to have been a disclosure relating to the fraud conviction of RC.
- When asked about the disclosure of previous convictions by members of The Society, Mr. Belcher confirmed by email that ‘the purpose of The Society is to promote the need for estate planning to the public and vet practitioners through stringent entry and ongoing requirements … fraud is … not in line with the SWW’s values, and certainly not the standard we set for membership …’. He also said that The Society did ‘conduct extensive due diligence to each applicant, with declarations on our application form for unspent criminal convictions’. He also clarified that spent convictions did not need to be disclosed, and applicants did not have to provide evidence of previous names.’
- RC asked Mr. Belcher to provide a witness statement and to respond to questions. The response was ‘Before I can consider this request or provide any formal response, I require sight of the direction or court order issued by Judge Hilder. It is necessary for me to review the specific directions and the scope of the permission granted by the Court before proceeding further’.
- Neither Mr. Brinkman nor Mr. Belcher gave evidence as there was no formal application for a witness summons.
Regulation 8(1)(b) of the Lasting Powers of Attorney and Public Guardian Regulations 2007 (‘the Regulations’) : a question of suitability - Regulation8 describes the people who can provide a certificate for an LPA. Regulation 8(1)(b) refers to a person chosen by the donor who, on account of his professional skills and expertise, reasonably considers that he is competent to make all the judgments necessary to certify the matters set out in paragraph (2)(1)(e) of Schedule 1 Mental Capacity Act 2005. This includes that no fraud or undue pressure is being applied to the donor.
Training: the Will Writing Partnership and the Society of Will Writers - The court considered the evidence relied upon by RC in support of his claimed professional expertise.
- RC’s evidence was that he received his initial and ongoing training through the Will Writing Partnership, which he stated trained to standards associated with the Society of Will Writers. He relied on that training to demonstrate the professional skills and expertise required by Regulation 8(1)(b) and provided his certificates.
- HHJ Hider accepted that training had taken place in accordance with the documentary evidence provided by RC She also observed that the documented training was ‘not nothing’. However, she also noted that the evidence demonstrated approximately 33.5 hours of training and CPD together with a foundation course, which she regarded as significantly less than would ordinarily be expected of the regulated professions identified as examples in Regulation 8(2). Whilst she recognised that the examples were not exhaustive, she said that they ‘suggest an expectation of membership of a regulated profession or experience with health or incapacity issues.’
- It was noted that whilst RC relied on the ‘kitemark’ of his association with The Will Writing Partnership and The Society of Will Writers he had tried but was unable to file evidence from either.
- HHJ Hilder considered RC’s membership of The Society of Will Writers. She noted that the membership was after his conviction and clearly before the conviction had become spent. She commented that it ‘is perhaps trite to observe that the ‘purpose’ of the Society as avowed by Mr. Belcher is clearly not being achieved.’ Further she noted as ‘dispiriting’ RC’s account that ‘he was neither asked about convictions nor given a form to complete when he joined the Society as an affiliate member’ and that after he ‘confirmed [his] conviction to Mr. Belcher in a face-to-face meeting’ , his membership was not cancelled.
- Ultimately, HHJ Hilder determined that a conviction for fraud is simply incompatible with acting in the role of a CP, which was intended to provide safeguards in respect of the serious matters involved in a CP’s judgment. It followed that RC could not reasonably have considered himself competent to make the judgments required of a CP. On that basis, she determined that the LPAs were invalid and ordered that the PG cancel the registration.
- For practitioners, the findings are important. Whilst the circumstances were particularly unusual, the Court examined whether a person entrusted with a statutory safeguarding function could reasonably regard themselves as suitable to perform that role. RC’s conviction for fraud was, in itself, incompatible with the safeguarding role of a certificate provider. His conduct in accepting company directorships whilst disqualified further compounded what HHJ Hilder described as his suitability deficit.
- Further, whilst it was recognised that the examples of those with professional skills set out in Regulation 8(2) were only examples of persons who may be regarded as having the necessary professional skills, she clearly considered that RC’s training and membership of The Society of Will Writers did not necessarily evidence the necessary expertise and skill required.
- Having found the LPAs invalid on the first ground, it was strictly unnecessary to determine the remaining grounds. However, because the cases were being treated as test cases, HHJ Hilder went on to consider and determine the second and third grounds
The second ground: had the statutory judgments actually been made? - The Court then considered whether Mr Cornford had in fact discharged the duties of a certificate provider which include:
a. the donor understood the purpose of the LPA and the scope of the authority conferred under it
b. no fraud or undue pressure is being used to induce the donor to create this LPA
c. there is nothing else which would prevent this LPA from being created by the completion of this instrument - The Judge concluded that, even on RC’s own evidence, it was not possible to conclude that he had actually satisfied himself of the matters he purported to certify. His explanations were frequently described as ‘generic’, there was little evidence of any meaningful exploration of donors’ understanding of the scope and effect of LPAs, and no contemporaneous records had been kept. Most concerningly, RC gave evidence that his training ‘made it clear that there is no requirement to take meeting notes’ for LPAs so none existed.
- Consequently, HHJ Hilder found that ‘At best, RC made assumptions. More probably, he simply did not consider the substance of what he was certifying.’ The absence of contemporaneous records was held to be particularly significant. As HHJ Hilder observed, the professions identified in Regulation 8(2) would ordinarily regard maintaining such records as routine professional practice. The LPAs were not valid.
The “Do Not Date” culture and the execution of LPAs - As set out in Regulation 9 and on the LPA instrument, there is a legal requirement that the donor’s parts are signed first, then the CP and then the attorney(s). This can be demonstrated by the process of each signatory signing and dating the signature when it is made.
- RC gave evidence that he ‘conducted the dating of the Lasting Powers of Attorney in compliance with [his] training by Anthony Brinkman (managing director of The Will Writing Partnership Limited, Chair of the Professional Standards Board for the Society of Will Writers, Regional Chairman of the Society of Will Writers and Tutor of the College of Will Writing.’
- He said ‘I told the donor/their chosen attorney or witness of the signing and dating order. I also told them that the dates could be added when all signatures had been collected to avoid an even longer lead time with the already lengthy OPG registration delays … There were some occasions where Do Not Date Stickers were applied…‘ He explained that he expected The Will Writing Partnership administrative staff to add the dates after signatures had been collected.
- What troubled the Court was the process. The evidence showed that signatures were routinely obtained without dates, that ‘Do Not Date’ stickers were applied, and that dates could subsequently be inserted administratively once all signatures had been collected. It was not logical to suggest that leaving a correctly executed LPA would take any longer than if signatories dated it at the time of signing.
- The Court adopted the PG’s submission agreeing that ‘the only logical purpose of such an approach is to preserve the possibility of signatures being added in an order deemed convenient, as opposed to the order which meets the legal requirement.’
- That criticism goes to the heart of Regulation 9, which prescribes a mandatory order of execution: donor first, certificate provider second and attorneys thereafter. HHJ Hilder regarded the dating requirements as the mechanism by which compliance with that sequence is demonstrated.
- Unsurprisingly, given that all the LPAs had the same date for each signature when it was clear that the dates were added administratively after all of the signatures had been applied and therefore represented information which was inaccurate, HHJ Hilder concluded that she could not be satisfied that any of the six LPAs had been executed in accordance with the statutory requirements and found that all six instruments failed on this ground as well.
Practical Pointers arising from the Judgment - Practitioners must seriously consider whether they are reasonably competent to act as a CP by considering their qualifications and any previous convictions for dishonesty as the court will scrutinise the suitability of those performing that role even when they are acting in a professional capacity.
- Practitioners are responsible for their own practice and cannot hide behind their training if it suggests a practice which does not comply with the statutory requirements.
- Taking instructions, executing and acting as a CP is not an administrative task. It needs to be carried out in accordance with the statutory requirements, and the requirements should be evidenced.
- The practice of applying ‘Do Not Date’ stickers and adding a date after the event undermines the process required for the validity of an LPA. If one date is added after all the signatures this results in an LPA bearing dates of signatures which are false. The dates should be applied to the signatures when they are added to the LPA.
- Given that these proceedings were expressly treated as test cases for a further 24 identified by the OPG, the decision will have ramifications beyond the LPAs before the Court. For anyone involved in the preparation of LPAs, HHJ Hilder’s judgment is a reminder that statutory safeguards are not administrative formalities. They are fundamental requirements, and the Court will expect strict compliance with them.
