LPA -- Choice of Certificate Provider

[60schild]

I've posted recently with reference to the process I went through to find a Certificate Provider for my father (who suffers from VD) in relation to an LPA for Health & Welfare.

I stated that in my view it's absolutely necessary to instruct a qualified person if seeking an LPA for somebody in respect of whom there's reason to doubt capacity: maybe a dementia diagnosis, or a history of apparently irrational behaviour. I realise that the LPA form suggests that a professional isn't necessary, but I expressed and explained my concern that if an appropriately qualified person isn't instructed then it might be possible for SS to successfully challenge the LPA.

Well, this afternoon I learned that my father's Certificate Provider (an appropriately qualified doctor) received a telephone call from my father's social worker last week, cross-examining him about his involvement, and asking whether he knew that my father had a consultant psychiatrist.

It seems clear to me that SS would like to be able to challenge the LPA that my father has granted to me. I'm now very relieved that not only did I do things thoroughly and properly, but that I can demonstrate that if needs be. (I sent the Certificate Provider a detailed letter of instruction, setting out a comprehensive background, enclosing copies of all the relevant legislation, drawing his attention in particular to the parts that relate to capacity and urging him to read all of it before meeting my father. I kept copies of everything.)

I'm posting this so that others can be aware that attempts might be made to challenge LPAs, in the hope that they'll be sure to dot all the 'i's and cross all the 't's when putting the documentation together. This isn't paranoia: it's reality.

 

[sue38]

I agree that if there is doubt about the person's capacity to execute an LPA that a doctor should provide the certificate. I say this is as a solicitor and therefore a 'professional' certificate provider.

I do think however that if the SW has a doubt over the certificate provider s/he should contact the Office of the Public Guardian, not the doctor. If I was questioned I wouldn't enter into dialogue directly with the SW.

 

[60schild]

Hi Sue,

I'm a qualified lawyer too, and I wouldn't dream of attempting to provide a certificate of capacity. It seems clear to me that only a doctor is qualified to do so, once capacity has been called into question.

I don't know why the SW rang the Certificate Provider. It seems entirely inappropriate to me, but then so very many things about the way in which the LA have approached my father's case have seemed to me to be totally inappropriate.

 

[JPG1]

Thank you, 60schild, for a very important post.

I hope also that it will help many other TPers.

It is indeed the 'reality of care' in the UK, that you now have to cover all options available, not only to TPers in their caring role, but your post highlights the options available to others who may wish to challenge your own circumstances.

There are good SWs out there; there are good Solicitors out there; no doubt about that.

But the pressure comes when 'you' meet a less than competent SW or Solicitor or ... so on.

Then comes the point when you should perhaps not even entertain 'conversation with a SW'. Ask the SW to put into writing, anything s/he has to communicate to you, if you don't understand it, .... So that you can then consider it at your convenience.

 

[timf]

I agree that caution should be exercised when instructing anyone to act as a certificate provider - Dr's included. I regularly train Dr's in the implementation of the MCA and the practicalities of assessment. I have to say that the majority of Dr's just don't seem to get it.

Personally, I'm a mental health nurse and do capacity assessments on a daily basis so I suppose it's easier for me. I would say that whoever you get to do the assessment, I would be asking about their previous experience of actual assessments. Psychiatrists and mental health nurses are far more likely to be able to do competant assessments than the GP (or even IMCA's).

If it helps anyone in the Gloucestershire area that is struggling to find a competant LPA certificator, I'd be willing to help or failing that put you in touch with a competant mental health professional that can.

Hope this helps

 

[bunnies]

I think there may be a bit of talking at cross purposes on the point of the 'certificate provider'. At the time that the LPA is made, the certificate provider has to certify that in their opinion the person knows what they are doing, and are therefore capable of signing an LPA document. If their mental capacity is in question, then they are not capable of signing the document. The OPG state very clearly that this person does not need to be a doctor. If, on the other hand,you have an LPA which states that it cannot be registered until the person lacks capacity - and some LPAs state this and some don't - then at that point you will need a doctor or mental health professional to make this judgement.
I don't see it will be possible for someone to challenge the LPA afterwards because they don't like the sound of the certificate provider if that person is signing to say the person is capable of signing the LPA. The documentation says very clearly that this can even be someone who has known the person for a length of time, and they do not need to have any health or legal qualifications. The social workers might ring someone up, but that doesn't mean they have any kind of a case.
I am afraid that this kind of thing makes people more nervous than they have to be about getting an LPA sorted, and in my opinion and experience, it isn't necessary to involve a solicitor at all if you don't want to.

 

[Splat88]

When we had an EPA drawn up before the LPA was available, we had to have a letter from the Consultant Geriatrician telling the solicitor that MIL was capable of understanding what she was doing, is it not the possible to do that with an LPA?

 

[bunnies]

Hi Splat88 - yes my understanding is that of course you can choose to do that with the LPA but it is not necessary since it can be an old friend that signs the form (they have to have known the person for a specified period of time). I see no harm in getting a doctor involved if it's easy to do so, and if it reassures the future attorneys, I was only pointing out that not doing so does not give SS the right to challenge the LPA.