TA v the Public Guardian and duties of a Certificate Provider

Introduction

The Judgment can be found here TA v the Public Guardian [2023] EWCOP 63 (07 December 2023) (bailii.org).

The case involved an appeal to Mrs Justice Lieven by P’s potential attorney (‘the Appellant’) from a decision of HHJ McCabe sitting in the Court of Protection. The Judgement is short, and therefore probably worth reading, particularly if you want to be refreshed of all the relevant statutory provisions which I have not set out in this note.

Facts

In brief, The case arose from a challenge by the Office of the Public Guardian (‘OPG’) to the validity of Lasting Powers of Attorney instruments for both Property and Financial Affairs and Health and Welfare (‘the LPA’s’), on the basis that they did not comply with paragraph 2(1)(e) Schedule 1 of the Mental Capacity Act (‘the 2005 Act’).

The Application originally included non-compliance on two grounds. However, the only ground pursued at the first hearing was that the Certificate Provider (‘CP’) ‘failed to make the requisite checks of understanding with P prior to certification’.

In the 2005 Act, Schedule 1 2(1) provides that : - ‘The instrument must include –

(e) a certificate by a person of a prescribed description that, in his opinion, at the time when the donor executes the instrument –

• The donor understands the purpose of the instrument and the scope of the authority conferred under it,
• No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and
• There is nothing else which would prevent a lasting power of attorney from being created by the instrument.’

The PG asked the court at first instance to determine whether the CP had failed to fulfil the requisite checks of understanding (i.e. those set out in the previous paragraph) with the donor prior to the execution of the LPAs. 

The attorney argued that there was no requirement for the CP to carry out various checks of the donors understanding, and that how the CP satisfied themselves of matters relating to the donor prior to signing the LPAs was a matter for them. Further, that neither the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (‘ the 2007 Regulations’), or the 2005 Act, prescribed particular steps that the CP would have to take to ascertain the donors understanding.

HHJ McCabe disagreed and held that she was entitled to look for evidence from the CP that the requirements of Schedule 2 had been met. In this case, the CP had simply asked the donor whether she was happy about the LPAs, and the donor confirmed she was. The Judge held it was difficult to understand (from this information), how the CP had satisfied herself that the donor understood the scope of her authority; that there was no undue pressure or inducement; and there was nothing else to prevent the LPA being created. The LPAs were found to be invalid.

The Appeal

The appeal was on the basis that :-

The statutory scheme sets out in clear terms what is required in order for an LPA to be valid, and the only requirement in para 2(1)(e) was for the provision of a certificate. There was no requirement for the CP to take any particular steps prior to signing the certificate, or for the court to ensure that the requisite opinion is formed.

HHJ McCabe therefore wrongly concluded that “this opinion is one of the requirements of the creation of an LPA …” when it is wrong and there is no requirement for the opinion.

Finally, that the Judge wrongly introduced the concept that the opinion must be valid and imposed obligations on the CP.

It was argued by the Appellant that the Judge’s approach undermined the scheme of the MCA; that there was a presumption of capacity; and that the Judge’s approach was that even though the donor had capacity, the LPA was invalid because the certificate provider failed to undertake sufficient checks.

On behalf of the PG, I argued that it was clear that para 2(1) (e) required the CP to have formed the requisite opinion.  This opinion must be based on something which allowed the opinion to be properly formed. The provision of a certificate is fundamental to the formal validity of the LPA. It is not simply a signature verifying capacity, but it is a signature which also goes to issues such as understanding who the attorney is, and undue influence etc.

In order to establish the validity of what the signature is verifying, the court must be able to look behind the signature and the opinion which was formed prior to signing.

Whilst the Appellant appeared to be suggesting that as long as the signature was present, the formalities were met, I submitted that the appellants submission taken at face value could result in a situation where there was no enquiry as to the basis on which the CP had formed the requisite opinion. This could result in an LPA being taken as valid when the CP had not spoken to the donor, or ascertained anything about the wishes, intentions or understanding of the donor. Such a situation would be absurd and would undermine the protection intended in Schedule 1.

Mrs Justice Lieven considered the statutory language, the overall statutory scheme and the purpose at which it was aimed. She held that the court was entitled to check that the requisite opinion had been formed by the CP and that the Judges approach at first instance was correct. The appeal was dismissed.