MoJ clarifies position on E&W solicitors receiving OPG queries on valid LPA execution

In 2023, the England and Wales Court of Protection confirmed that LPA certificate providers must take some steps to satisfy themselves that the section 2(e) conditions in Schedule 1 of the Mental Capacity Act 2005 (the 2005 Act) are met before they sign it (TA v Public Guardian, 2023 EWCOP 63). Otherwise, the certificate cannot be considered to have been validly provided if challenged in court. Moreover, paragraph 11(1) of Schedule 1 of the 2005 Act gives the OPG the power to determine whether an instrument was validly executed in this sense. The OPG may therefore request relevant information from the certificate provider to verify the circumstances in which the LPA certificate was signed.

However, the MoJ team responsible for implementation of the Modernisation of Lasting Powers of Attorney project has now confirmed to law firm 39 Essex Chambers that the Powers of Attorney Act 2023, when it comes into effect, will not require certificate providers to respond to inquiries made by the OPG. In fact, solicitors who act as a certificate provider will be in breach of rule 6.3 of the Solicitors Regulation Authority's (SRA’s) Code of Conduct if they do respond to the OPG's inquiries. This rule requires they keep the client's affairs confidential unless disclosure is required or permitted by law, or if the client has consented. Without this consent, disclosure is permitted only if a solicitor knows that a crime or fraud has been committed. This scenario is unlikely in situations where the solicitor acted as the certificate provider.

Solicitors are being advised to obtain advance consent from their client when acting in the making of an LPA. The MoJ is considering including wording in the certificate provider form to encourage compliance with future requests from the OPG in circumstances where a dispute about an LPA has been raised.

Sources

• 39 Essex Chambers (PDF)
• Mental Capacity Law and Policy Blog (February 2023)
• BAILII (TA v Public Guardian, 2023 EWCOP 63)