​TA v The Public Guardian [2023] EWCOP 63

Appeal against decision that an LPA was invalid where the appellant is sole attorney and which raises an important point about the duties of a certificate provider.

KA, the mother of the appellant had originally made an LPA appointing all three of her children as attorneys for property and finance. These were revoked by KA in 2021 and she appointed one of her children, TA, as attorney for both finance and health and welfare. The certificate provider for both was X, TA's ex mother-in-law. One of KA's sons then sought to revoke the LPAs but KA was assessed not to have capacity to execute new ones. The OPG investigated and X said KA had not been pressured but a COP visitor speaking to KA found she had no idea why TA had been appointed sole attorney. The judge in the first instance found that X had not provided evidence required to satisfy the requirements of para 2 of Sch1 of the MCA 2005. 

In this judgment, Lieven J agrees with the judge's approach, noting the ambit is much wider than simply capacity. Paragraph 2 is there to provide some safeguards that the donor understands the instrument, is not subject to fraud or undue pressure and there are no other barriers to the LPA. Despite the existence of the powers set out in s22 of the Lasting Power of Attorney etc Regulations 2007 a 'purposive and careful approach' should still be taken towards the certificate safeguards. 

Read the full judgment on the National Archive