The cancellation of six lasting powers of attorney following failures involving a certificate provider raises questions about how this statutory safeguard operates in practice. Andrew McManus considers the judgment and argues for proportionate records, a clear pathway for accessing them and greater scrutiny of providers who certify LPAs commercially or repeatedly.
The Court of Protection judgment in Re: AR and Others [2026] EWCOP 47 (T2) concerned six lasting powers of attorney (LPAs), with a further 24 matters awaiting consideration. The court examined the certificate provider’s eligibility, whether he had satisfied himself of the matters he certified, and compliance with the execution requirements.
The LPAs were cancelled without a finding that the donors lacked capacity when making them or that actual fraud or undue pressure had induced them. Re: AR reminds us that the statutory safeguards carry their own weight.
What concerns me is how easily inadequate practice could go undetected where someone regularly acts as a certificate provider. The role of certificate provider carries significant responsibility. Providers must satisfy themselves that the donor understands the purpose of the LPA and the scope of the authority conferred, that no fraud or undue pressure is being used to induce its creation, and that nothing else prevents its creation.
Demonstrating that the safeguard worked
A completed certificate records the provider’s conclusions. It does not explain what they asked the donor, what answers they received or whether anything gave them cause for concern. That distinction matters if an LPA is challenged, potentially long after it was made.
The judgment emphasises proportionality. It does not prescribe the same enquiries for every donor or introduce a universal record form. However, the court regarded the absence of contemporaneous notes as significant and made clear that providers should be able to demonstrate that they have taken their duties seriously.
In my view, this is where the process could be strengthened. There should be a defined protocol or standard record for certificate providers to complete and give to donors for submission to the Office of the Public Guardian (OPG) with the LPA registration application. Providers should also retain a copy. It need not be lengthy, but should record how the provider reached their conclusions. A requirement to verify the record by a statement of truth could also be considered, although that goes beyond the proposal I am making here.
Such a record could cover whether the donor was spoken to alone, questions about the powers being granted, the donor’s responses and any concerns about pressure or understanding. The purpose would be to support meaningful enquiries and preserve the reasoning behind certification, while allowing the discussion to reflect the donor’s circumstances.
Keeping and accessing records
A standard record would only be part of the answer. There should also be a clear pathway for relevant supporting documents to reach the OPG or the court when concerns arise.
That pathway would need to address confidentiality and, if applicable, legal professional privilege. A certificate provider’s note is not automatically privileged simply because a solicitor made it. Equally, a protocol cannot assume that every record can be disclosed on request. The circumstances in which records can properly be obtained need to be understood.
I would also like the OPG to consider proportionate spot checks, particularly where individuals provide certificates commercially or repeatedly. Asking for records supporting a sample of certificates could help identify inadequate practices before they affect further donors.
Lodging the record would help preserve evidence of the enquiries undertaken, while proportionate spot checks would allow the OPG to assess whether those enquiries were adequate. Any scheme would need clear authority and resources. This is a proposal for additional scrutiny, rather than a claim that the judgment established such a system.
Maintaining accessibility
I would not, however, support a universal requirement for certificate providers to hold professional qualifications. There are good reasons why the legislation permits an eligible person who has known the donor personally for at least two years to undertake the role. LPAs need to remain accessible.
However, knowing the donor does not override the disqualifications in regulation 8 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007. A member of the donor’s family, for example, cannot provide the certificate.
There is a reasonable distinction between an eligible personal acquaintance undertaking the role occasionally and someone offering certification as a regular commercial service. The matters to be certified are the same, but repeated inadequate practice can affect many donors.
What practitioners should take from this
For practitioners preparing LPAs, the immediate lesson is to establish that the proposed certificate provider is eligible and understands the role. Concerns about capacity or pressure need proper exploration. Reassurance from an intended attorney is no substitute for engaging directly with the donor.
Here practitioners should be alert where someone else answers questions for the donor or prevents an independent discussion.
The execution process also matters. The donor signs first, followed by the certificate provider and then the attorneys. Recording the actual signing dates helps demonstrate compliance.
If an LPA is invalid and the donor subsequently loses capacity, they may be unable to make a replacement. An application for a deputyship may then become necessary, bringing expense and delay. The question of who bears the costs incurred in such an application is an issue for further consideration.
My proposed response is a proportionate standard record, a clear pathway for accessing it and targeted scrutiny where certification is undertaken commercially or repeatedly. That would support the different people who can legitimately perform the role and preserve evidence if validity is questioned.
The certificate provider’s signature should be the conclusion of a proper safeguarding process, not the only evidence that one took place.
About the author
Andrew McManus is a partner at IMD Solicitors, where he leads the firm’s contentious trusts and probate practice. He advises individuals, families, executors, trustees and beneficiaries on disputes involving wills, trusts, estates and matters before the Court of Protection.
The views expressed in this article are those of the author and not necessarily those of Today’s Wills and Probate.
