Signed and sealed

Admittedly, it took more time than it should have to determine exactly who was able to act as a certificate provider when lasting powers of attorney (LPA) were introduced. Clearly the matter of finding someone who is suitable to provide the certificate then making sure they understand the role is more important.

However, it makes me nervous about getting it right when a registration application is returned because a member of the firm has provided a certificate when a partner is appointed as attorney.

When clients instruct me in preparing LPAs and they have fully understood the purpose of the documents, acting as a certificate provider isn't too stressful. In these cases I am happy to complete the certificate as part of the job. The client must understand that the choice is theirs and signing the LPA confirms that.

Things aren't always this straightforward, though. Often someone calls because their parent has dementia, has gone into care, and they have been told to be 'power of attorney'. We ?all know that no assumptions can be made about a person's capacity simply because they have been diagnosed with ?a condition.

A face-to-face meeting with the donor is essential and practitioners should regard the following:

• Are clients on any medication that might cause drowsiness or confusion?

• Is there a particular time of day that they are brighter or more alert?

• Do they need communication aids?

• Is a home visit required because coming to the office is too stressful?

Two experiences that required a lot of effort stick in my mind. One involved preparing an LPA for a woman who had suffered a stroke. She communicated via an alphabet board and it took four hour-long meetings to work through her instructions and satisfy myself that she really did understand the form. Not being able to rely on yes/no questions made it more time-consuming.

The other case concerned a man in his 60s with severe autism. He did not like to speak to strangers, and even if he knew someone, he preferred to communicate via thumbs up/thumbs down. He didn't like to make eye contact and didn't like dealing with men. With the help of his GP and his sister, I took instructions. The doctor and I each provided a certificate confirming that he understood the LPA. (See box.)

Invaluable precedent documents Information that can be given to a family member explaining why you need to see the donor alone, and what you will consider if you act as the certificate provider. It is never easy to deal with people who try to put pressure on you. Is it OK to take instructions and complete the form if you doubt capacity but there is someone willing to complete the knowledge certification? No. A checklist to keep on file that records answers given to specific questions, such as why the client wants to appoint an attorney. It is never going to be sufficient to simply take a list of names, addresses and dates of birth, no matter what the time and cost restrictions. A letter for a medical professional setting out the legal test of capacity and what a donor needs to understand to prepare a valid LPA. I would always ask any professional about their willingness to complete the certificate rather than just provide a report. If they won’t, having their report on file offers a good deal of reassurance.

I feel strongly that the certificate ?on an LPA is not just a 'hoop to be jumped through'. It is a fundamental ?part of the process, and should be given due consideration.

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser