Under an LPA, you can choose the person(s) you trust to know and respect your wishes, and to be able to make vital decisions on your behalf if you were to lose mental capacity in the future.

All new LPAs must be registered with the Office of the Public Guardian (OPG), who specify that only a person with LPA mental capacity to enter into an LPA may do so. This ensures the person fully understands what the LPA means. This is where LPA mental capacity assessments and the role of the Certificate Provider become of the utmost importance.

At Thornton & Lee, we are a team of registered and insured professionals who specialise in LPA mental capacity assessments and acting as LPA Certificate Providers. Our role is to make sure you have a full understanding of the LPA you are entering into, and to further rule out any undue pressure or influence from others. Our highly experienced assessment team are on hand to guide you through the process, ensuring the appointment runs smoothly and reducing unnecessary delays, helping you avoid the stress and cost of later court applications wherever possible.

What is a Lasting Power of Attorney?

An LPA is a legal document in which you can choose a person(s) you trust to make important decisions on your behalf if, at some point in the future, you are unable to make those decisions yourself.

There are two types of LPA:

1. Health and Welfare LPA. Covers decisions about care, medical treatment, or where you live. Your attorneys can only make decisions under this LPA if you lose mental capacity.
2. Property and Financial Affairs LPA. Allows your attorneys to manage your money, pay bills, access your bank account, or sell your home. You can decide whether attorneys can act immediately once the LPA is registered with the OPG (with your consent), or only if you later lose mental capacity.

Having an LPA in place gives you and your family peace of mind that, should the time come when you cannot make these decisions yourself, you have already chosen trusted attorneys to act in your best interests.

Choosing Your Attorneys

When choosing an attorney, it is important to pick someone you trust to uphold your wishes and act in your best interests.

• Many people appoint family members or long-term friends.
• Others may choose a professional, such as a solicitor, if they do not have someone suitable within their personal network.

What is an LPA Certificate Provider?

An LPA Certificate Provider is an independent person who signs the LPA document to confirm that:

• The person entering into the LPA is doing so voluntarily.
• They are not under any undue influence or coercion.
• They fully understand the LPA and the legal powers it grants.

This role is a key safeguard to ensure the LPA is valid and legally secure.

What is Mental Capacity in the Context of an LPA?

Under the Mental Capacity Act 2005, mental capacity is defined as the ability to make your own decision at the time it needs to be made.

It is important to note:

• Mental capacity is decision-specific – a person may be able to make some decisions but not others.
• Mental capacity can change over time.
• A person should be assessed at the point the decision needs to be made, and ideally when medically well and free from temporary factors such as illness or infection.

A person is considered to have capacity if they can:

1. Understand the information relevant to the decision.
2. Retain that information long enough to use it.
3. Weigh up the information to make the decision.
4. Communicate their decision (verbally, non-verbally, or using aids if required).

If a person cannot do one or more of these steps due to an impairment or disturbance in the mind or brain, then they lack mental capacity for that particular decision.

The OPG requires all persons entering into an LPA to have capacity and to make their decision freely. This ensures individuals are safeguarded, protected from exploitation, and that their wishes are respected.

What are the Risks of Not Having an LPA?

It is really important to consider making an LPA as early as possible. At Thornton & Lee, we see families who plan ahead, but also many who leave it too late.

If a person no longer has capacity, they cannot enter into an LPA. Families may then face:

• Problems accessing bank accounts to pay urgent bills without a property and financial LPA.
• Local authorities making care decisions, overriding family views, if no health and welfare LPA is in place.
• Time consuming and costly applications to the Court of Protection for a Deputyship Order.

Once capacity is lost, a Court of Protection Deputyship Order is the only option. This process can be far more expensive, stressful, and time-consuming than setting up an LPA while the person still has capacity.

At Thornton & Lee, we can usually book an LPA mental capacity assessment appointment within seven days, reducing the risk of delays and ensuring the new LPA is completed as soon as possible.

Do I Need an LPA Mental Capacity Assessment, a Certificate Provider, or a COP3 for Deputyship?

When you contact us, we will discuss your circumstances and recommend the most suitable option:

• LPA Certificate Provider Service – Confirms understanding and absence of undue influence. Best for those without significant memory or understanding problems. From £150.
• LPA Mental Capacity Assessment – Includes a comprehensive, court-standard report and our assessor acting as Certificate Provider (if capacity is confirmed). Recommended where there are complex situations, family disputes, or medical conditions affecting memory/understanding. From £495.
• COP3 Mental Capacity Assessment – If capacity has already been lost, we can complete a COP3 in support of a Court of Protection Deputyship Order application. From £395.

Thornton & Lee case studies 

• Ernest is 75 years old and sadly lost his wife two years ago, and so has moved out of the county to a new area for a fresh start. Ernest has a daughter who he is very close to, but she lives the other side of the county. Ernest has no significant health conditions, and is fully independent with all his activities of daily living. Ernest wants to enter into a new LPA, appointing his daughter as attorney, and plans to do the paperwork himself on his computer. However, being new to the area, he has not yet established himself and does not know anyone who can act as his Certificate Provider. Ernest requires Thornton & Lee’s LPA Certificate Provider service. 

• Sally is 81 years old and lives with her husband Michael. Sally was diagnosed with Alzheimer’s disease two years ago. Sally has a team of carers attending three times each day to support with personal care. Sally is sometimes very lucid and can tell others exactly what she wants. At other times, Sally is observed to be a little confused and is not always oriented to time, place, or person. Sally and Michael have a close relationship with their granddaughter Elizabeth, who lives nearby, and Elizabeth thinks it’s a good idea to set up new LPA’s for Sally. Sally requires Thornton & Lee’s LPA mental capacity service, which includes completion of a COP3 for a Deputyship application at no additional charge if, despite best efforts, the assessor cannot conclude Sally has LPA mental capacity. 

• Geoffrey is 61 years old and is living in a nursing home as a result of an acquired brain injury after he was involved in a motorcycle crash five years ago. Geoffrey requires all his care to be delivered in his bed, as he is no longer mobile following the accident. Geoffrey is able to communicate some choices with his care team, such as what jumper he would like to wear or whether he would prefer a hot or cold drink. Geoffrey recognises his sister Gemma and is always pleased to see her and recognises her as a familiar and trusted person. However, Geoffrey is constantly disoriented to time, place, and circumstances. The nurses have to predict and meet all of Geoffrey’s needs in his best interests, and he cannot reliably ask for help or make his needs known to others. Geoffrey requires Thornton & Lee’s COP3 mental capacity assessment service for a Deputyship application. 

Friendly and Professional Mental Capacity Assessors

At Thornton & Lee, we understand that entering into a new LPA is one of the most important steps you can take to safeguard your future. The validity of your LPA depends on having the right mental capacity assessment and Certificate Provider support at the right time.

Whether you are:

• Seeking reassurance about a loved one’s capacity,
• Facing family disputes, or
• Managing a new medical diagnosis that could affect mental capacity,

Please don’t wait until difficulties arise. Fill in one of our contact forms today, and a professional member of our team will be in touch to discuss your circumstances and the services that best suit your needs, giving you peace of mind and the protection required for your future.

The post Assessing Mental Capacity for Lasting Power of Attorney: What You Need to Know Before It’s Too Late appeared first on Thornton & Lee.

The role of a certificate provider 

The certificate provider is an individual acting as an impartial observer to ensure that you, the donor, understands the LPAs you are entering into with no concerns regarding your mental capacity or understanding of the powers. 

What does a certificate provider do?

The key purpose of a certificate provider is to safeguard the rights of you, the donor, ensuring you are entering into your LPAs free from any coercion, pressure, or undue influence. The certificate provider needs to be satisfied that you understand the documents you are signing and that the documents are valid with the key purpose of protecting your interests. 

Key responsibilities

The certificate provider’s key responsibilities include ensuring that you, the donor, understand the powers you are bestowing upon your chosen attorneys and the key function and purpose of the LPAs you are entering into. 

A key responsibility also lies in ensuring that you are not in any way being tricked, pressured, or placed under duress to enter into your LPAs or giving the powers to your attorneys unwillingly. 

Who can act as a certificate provider?

This can be someone you have known personally for two or more years.

Or

An individual with relevant professional skills and expertise as detailed below;

• A registered health professional, including your GP

• A registered social worker

• A lawyer

• An Independent Mental Capacity Advocate (IMCA)

Who cannot act as a certificate provider?

• An attorney or replacement attorney for the LPA
• An attorney or replacement attorney in any other LPA or Enduring Power of Attorney that you’ve already made
• A member of your or your attorney’s family, including extended family
• An unmarried partner of yours or any of your attorney’s
• Yours or any of your attorney’s business partners or employees
• Anyone employed within the care home you reside in, including the owner, manager and director
• Anyone running or working for a trust corporation appointed as an attorney in a property and financial affairs LPA

Who can be present during the certificate provider meeting?

You can choose to have someone present with you during the meeting. Sometimes, you may feel this is beneficial if, for example, you have communication difficulties such as to your speech or hearing. Or, you may simply wish to have someone familiar with you on the day. It is essential that any named attorneys, however, are not present during this process as doing so will invalidate the LPAs and the certificate provider would be unable to sign due to an inability to conclude that no undue influence/pressure was at play. 

What will I be asked during the process?

• As part of a general discussion, together we will explore the following points;

• The purpose of an LPA and an ability to understand the contents of your LPA

• The powers you are bestowing upon your attorney(s) and why you have chosen them / are they trustworthy and any qualities they possess for the role

• How you wish your attorneys to act

• When you wish your attorneys to act in regard to property and financial LPA

• That you understand when your attorneys can act in regard to your health and welfare LPA 

• Your legal rights and responsibilities 

• That you are not being pressured, tricked or placed under duress to make the LPAs

• Positives / any negatives / motivation to entering in to the proposed LPA 

• That you understand you can revoke your LPAs even when registered if you possess the mental capacity to do so at that juncture

• Whether you wish for the powers to be registered immediately or in the future

• That once signed by all parties, the LPA must be registered with The Office of the Public Guardian in order to be used. The health and welfare LPA can only be used if you have lost the mental capacity to deal with an issue yourself

We can also act as a witness and will cover the following points:

• Life sustaining treatment – health and welfare LPA

• Preferences / instructions outlined in your LPAs

• Witnessing attorney’s signatures

Will the certificate provider be completing a mental capacity assessment on me?

No, your chosen certificate provider must ensure that you understand the LPAs you are entering into, that you are free from any coercion or undue influence and that you are freely able to discuss in private your motivation for entering into the powers and that the decision as to whom your chosen attorneys are to be is yours and that you understand the powers you are bestowing upon them. The certificate provider must be certain that you, the donor, has the necessary capacity to enter into the LPAs before they can sign to certify that on the day it is their opinion that after all practical steps have been followed, they are satisfied you are able to enter into the LPAs freely and fully informed. 

Should there be any concerns in regard to your capacity and understanding or if you are seeking a ‘belt and braces’ approach to the LPAs then Thornton & Lee will discuss your needs and, if required, arrange a formal mental capacity assessment for you.

We understand that these processes can be daunting, but please be assured that at Thornton & Lee, we pride ourselves in putting you at ease and ensuring that the process is stress-free and comfortable. Our assessors are fully trained in the role of certificate provider, ensuring the process is relaxed, seamless and supportive. Should you wish to consider this service then get in touch today by completing our contact form here for your free no no-obligation quote, where our friendly team will be able to talk you through the process and answer any questions you might have. 

The post What is a Certificate Provider and why do we need one?  appeared first on Thornton & Lee.

Here we have included a breakdown of what this new legislation entails and some of the key changes it is going to introduce:

What is an LPA?

A Lasting Power of Attorney (LPA) is a legal document that allows an individual to appoint another person to make decisions on their behalf. This could be regarding financial affairs or health and well-being, in the event that they lose the mental capacity to make these decisions themselves.

Improving an Outdated System

The current process for creating an LPA is heavily paper-based, with some procedures dating back over 30 years. According to the government “every year, the Office of the Public Guardian handles more than 19 million pieces of paper as a result of their offline system”. 

Bringing the System Online

One of the most significant changes introduced by the Power of Attorney Act 2023 is the transition to an online system. This change aims to make the process quicker, more accessible and more secure for anyone creating and relying on LPAs.

The Office of the Public Guardian (OPG) is currently developing this new online system, which will undergo thorough testing before being made available to the public. This modernised system and move to a digital format is a critical step in making the process more efficient and environmentally friendly.

Enhancing Security and Fraud Prevention

The transition to an online system will also enhance security measures, including identity checks for applicants. These measures will ensure that only authorised individuals can create or manage an LPA, protecting vulnerable individuals from potential exploitations.

Benefits of Digitalisation

The time it takes to complete the process will be significantly reduced as fewer paper trails are needed. Any potential errors will be identified and corrected promptly and the online system will be designed to be user-friendly, making it easier for individuals to create and manage LPAs.

There will be support put in place for those who cannot access the internet, particularly for vulnerable adults who may struggle with digital formats. For these individuals, an improved paper process will remain available to ensure everyone has access to this service as it takes a step forward. 

In response to the rising number of LPA applications, the OPG has increased its staff to process current applications more efficiently. It is reported that “the teams are now registering around 19,000 more lasting powers of attorney a month than before the pandemic”.

The Act also introduces several other important changes. The group of people who can object has been widened, the objection process has been expedited and chartered legal executives are now permitted to certify copies of LPAs, increasing the flexibility and accessibility of the process.

Lasting Power of Attorney at Thornton & Lee

The changes introduced by the Power of Attorney Act 2023 are a response to the significant increase in LPA applications in recent years and aim to bring the LPA process into the 21st century. More announcements are yet to come, but the changes could benefit countless individuals and families across the UK. At Thornton & Lee, we are committed to ensuring that all our LPA mental capacity assessments are completed to the highest standard of robust Court standard assessment, whilst approaching all appointments in a friendly yet professional way to ensure you or your loved one are placed at ease.

At Thornton & Lee we are also able to offer (at no additional fee to you), completion of a COP3 mental capacity assessment if despite our best efforts we cannot establish mental capacity to enter into LPA’s at the appointment. A COP3 which is a specialist mental capacity assessment required by the Court of Protection to grant powers to support those who do not have the required mental capacity to enter into a LPA.

If you need assistance with a mental capacity assessment to create a new Lasting Power of Attorney, use our contact form to request a free consultation or call us at 0333 772 9315 . One of our experienced and friendly Mental Capacity Assessors will be in touch to provide the help and advice you need.

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