Lasting Power of Attorney: disqualification criteria

Monday 05 July 2010

I am preparing a Lasting Power of Attorney (LPA) for an elderly client. The form requires the certificate provider to confirm that he or she is acting independently of the donor and in particular is not is not a person listed in the disqualification criteria. Could you explain this position further?

The Law Society’s view is that Regulation 8(3) of the Lasting Power of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 No.1253 sets out the disqualification criteria. This does not include the person who assisted in the preparation of the LPA. Our interpretation is that as long as the solicitor is not a donee of the LPA and is not within the disqualification criteria of Regulation 8(3) then they can be the certificate provider. It is also our view that if it had been intended that a solicitor should not perform both roles, it is highly likely that there would have been something to this effect in the Regulations.

We therefore interpret the reference to "independent" person in relation to the categories in Regulation 8(3) as someone who is unconnected with the donor in terms of family relationship and is not a donee of the power or associated as an employee/director/partner/care home staff of a donee of the power, i.e. is independent of the person(s) exercising the power.

We have also received confirmation that the Public Guardian would treat such as LPA as valid unless there is a court decision to the contrary (i.e. if someone successfully objects to its validity on that ground).

The Law Society has prepared a Practice Note on Lasting Powers of Attorney which you may find of interest.

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