certifying a copy of an LPA - you really don't have to write the text by hand

[Robin]

Following the thread in May I asked the OPG if they held that lay people
had to certify copies in manuscript. After a reminder I had yesterday a
reply from their "content team" (to whom my question was passed as I
referred to the gov.uk guidance):


"We have spoken to our legal team and, as you have rightly suggested,
both solicitors and laypeople can certify copies of a lasting power of
attorney (LPA) by either:

• handwriting the words "I certify... "
• using a stamp for "I certify... "

Either option will need to be signed and dated in manuscript. A
solicitor must be holding the original LPA at the time of certifying the
copy.

The online guidance uses the word "write" partly for reasons of brevity
and partly because laypeople are unlikely to have the relevant stamp. We
will take a look at the guidance to see how we can make this point clearer."


--
Robin
reply-to address is (intended to be) valid

[the Omrud]

Does this really mean you can create a certified copy of an LPA
yourself? Would it be accepted by banks, etc?

--
David

[Robin]

Yes.

> Would it be accepted by banks, etc?
>

Don't know 'guv: if I could predict the behaviour of banks I wouldn't be
as poor as I am :(

[Peter Crosland]

On 09/07/2016 11:44, the Omrud wrote:

It would seem to be the case. Any bank, or other body, should only need
to see the original, and make their own copy for their records.


--
Peter Crosland

Reply address is valid

[the Omrud]

That wasn't really the question. If they've seen the original then they
don't need a certified copy. I have certified copies of the EPA I hold
for my mother for two reasons. I don't want to send the original by
post (I carried it to the solicitor on foot) and I might need two or
more copies concurrently since they can take a week or two to come back
by post.

If I created "certified copies" myself by signing each page of a
photocopy and adding the appropriate words, would that be acceptable to
businesses? If so why did I pay the solicitor £17? (Not that this was
an exorbitant cost for three certified copies).

--
David

[Robin]

On 09/07/2016 13:38, the Omrud wrote:

> If I created "certified copies" myself by signing each page of a
> photocopy and adding the appropriate words, would that be acceptable to
> businesses? If so why did I pay the solicitor £17? (Not that this was
> an exorbitant cost for three certified copies).
>

I think there may be some misunderstanding. A DIY copy must be
certified signed by the donor, not the attorney. See
https://www.gov.uk/power-of-attorney/certify.

I blame Shirley :)

[Roger Hayter]

Robin <rb...@hotmail.com> wrote:

> On 09/07/2016 11:44, the Omrud wrote:
> > On 09/07/2016 09:45, Robin wrote:
> >> Following the thread in May I asked the OPG if they held that lay
> >> people had to certify copies in manuscript. After a reminder I had
> >> yesterday a reply from their "content team" (to whom my question was
> >> passed as I referred to the gov.uk guidance):
> >>
> >>
> >> "We have spoken to our legal team and, as you have rightly suggested,
> >> both solicitors and laypeople can certify copies of a lasting power of
> >> attorney (LPA) by either:
> >>

> >> â•¢ handwriting the words "I certify... "
> >> â•¢ using a stamp for "I certify... "

> >>
> >> Either option will need to be signed and dated in manuscript. A
> >> solicitor must be holding the original LPA at the time of certifying the
> >> copy.
> >>
> >> The online guidance uses the word "write" partly for reasons of brevity
> >> and partly because laypeople are unlikely to have the relevant stamp.
> >> We will take a look at the guidance to see how we can make this point
> >> clearer."
> >
> > Does this really mean you can create a certified copy of an LPA
> > yourself?
>
> Yes.
>
> > Would it be accepted by banks, etc?
> >
>
> Don't know 'guv: if I could predict the behaviour of banks I wouldn't be
> as poor as I am :(

I got the impression that only the donor could do this, obviously while
competent to do so?

--

Roger Hayter

[the Omrud]

Ah, I see. That makes more sense.

--
David

[Pelican]

The concept of a certified copy has no particular legal recognition in
English law. It is a very convenient thing to have, because it avoids
the loss of the original document. But, ultimately, what a certified
copy must be is determined by the person asking for the certified copy.
If the person will accept the copy certified by anyone, so be it. If
they insist upon a method of certification, that's what must be done.

[Chris R]

Not correct I'm afraid. Certified copies of powers of attorney are governed
by section 3 Powers of Attorney Act 1971:
http://www.legislation.gov.uk/ukpga/1971/27/section/3
--
Chris R

========legalstuff========
I post to be helpful but not claiming any expertise nor intending
anyone to rely on what I say. Nothing I post here will create a
professional relationship or duty of care. I do not provide legal
services to the public. My posts here refer only to English law except
where specified and are subject to the terms (including limitations of
liability) at http://www.clarityincorporatelaw.co.uk/legalstuff.html
======end legalstuff======

[Robin]

On 09/07/2016 22:39, Pelican wrote:

>
> The concept of a certified copy has no particular legal recognition in
> English law. It is a very convenient thing to have, because it avoids
> the loss of the original document. But, ultimately, what a certified
> copy must be is determined by the person asking for the certified copy.
> If the person will accept the copy certified by anyone, so be it. If
> they insist upon a method of certification, that's what must be done.
>

Section 3 of the Powers of Attorney Act 1971 (Proof of instruments
creating powers of attorney)[1] prescribes a method of proving the
contents of a power of attorney. So AIUI a person can decline to accept
such a copy if they have reason to believe it is in some way flawed but
cannot eg insist on seeing the original just because they don't trust
copies.



[1]

(1)The contents of an instrument creating a power of attorney may be
proved by means of a copy which—

(a) is a reproduction of the original made with a photographic or other
device for reproducing documents in facsimile; and

(b) contains the following certificate or certificates signed by the
donor of the power or by a solicitor...

[davi...@gmail.com]

On Saturday, 9 July 2016 09:46:22 UTC+1, Robin wrote:

> The online guidance uses the word "write" partly for reasons of brevity
> and partly because laypeople are unlikely to have the relevant stamp.

But are much more likely to have electronic methods of adding the relevant wording - which I presume would be just as acceptable.

[Pelican]

On 10/07/2016 19:02, Chris R wrote:
>
>> On 9/07/2016 20:44, the Omrud wrote:
>> > On 09/07/2016 09:45, Robin wrote:
>
>> > Does this really mean you can create a certified copy of an LPA
>> > yourself? Would it be accepted by banks, etc?
>>
>> The concept of a certified copy has no particular legal recognition in
>> English law. It is a very convenient thing to have, because it avoids
>> the loss of the original document. But, ultimately, what a certified
>> copy must be is determined by the person asking for the certified copy.
>> If the person will accept the copy certified by anyone, so be it. If
>> they insist upon a method of certification, that's what must be done.
>
> Not correct I'm afraid.

I'm afraid not.

> Certified copies of powers of attorney are
> governed by section 3 Powers of Attorney Act 1971:
> http://www.legislation.gov.uk/ukpga/1971/27/section/3

Section 3 is an empowering provision only about POA. People asking for
a certified copy of a POA may honour it, but there is no obligation on
anyone to accept it.

[Chris R]

They most certainly are obliged to accept it. The attorney is entitled to
give them valid instructions, and if they fail to obey them, they can be
sued., or a complaint made to the Ombudsman. And in the case of enduring
powers of attorney, they are likely to be guilty of unlawful age and
disability discrimination.

[RobertL]

Thank you for posting this Robin. It is very helpful, although it does contain the somewhat puzzling statement: "A solicitor must be holding the original LPA at the time of certifying the copy.".

Robert

[Roland Perry]

In message <fb0d680f-45a3-43fe...@googlegroups.com>, at
04:34:24 on Mon, 11 Jul 2016, RobertL <rober...@yahoo.com> remarked:

>> Either option will need to be signed and dated in manuscript. A
>> solicitor must be holding the original LPA at the time of certifying the
>> copy.
>>
>> The online guidance uses the word "write" partly for reasons of brevity
>> and partly because laypeople are unlikely to have the relevant stamp. We
>> will take a look at the guidance to see how we can make this point clearer."
>
>
>Thank you for posting this Robin. It is very helpful, although it does
>contain the somewhat puzzling statement: "A solicitor must be holding the
>original LPA at the time of certifying the copy.".

Perhaps between his teeth, if one hand has the pen and the other the
copy being countersigned?
--
Roland Perry

[Robin]

On 11/07/2016 12:34, RobertL wrote:

>
> Thank you for posting this Robin. It is very helpful, although it
does contain the somewhat puzzling statement: "A solicitor must be
holding the original LPA at the time of certifying the copy.".
>

Donors are presumed to know if the documents they are certifying are
true copies of the originals. Solicitors and other third parties cannot
be presumed to know unless they have the original in their possession:
the solicitors etc may never have seen the original before.

[Robin]

On 10/07/2016 19:58, Pelican wrote:

>
> Section 3 is an empowering provision only about POA. People asking for
> a certified copy of a POA may honour it, but there is no obligation on
> anyone to accept it.
>

I suspect you are misconstruing the word "may" in the full-out words at
start of subsection (1). It is old-style drafting but patently does
*not* mean "may if the recipient chooses" as that would make the
provision otiose.

[Robin]

Oops. Apologies for possibly misunderstanding your point given on
further I see you may be asking why the solicitor etc must hold an
original. If so you are right that the solicitor etc does not have to
hold the original LPA if they are certifying a copy made from a
certified copy (see section 3(2) of the 1971 Act). But I would be slow
to criticise the communication from the OPG: it's hard to boil it all
down in plain English.

[Pelican]

On 11/07/2016 18:43, Robin wrote:
> On 10/07/2016 19:58, Pelican wrote:
>
>>
>> Section 3 is an empowering provision only about POA. People asking for
>> a certified copy of a POA may honour it, but there is no obligation on
>> anyone to accept it.
>>
> I suspect you are misconstruing the word "may" in the full-out words at
> start of subsection (1). It is old-style drafting but patently does
> *not* mean "may if the recipient chooses" as that would make the
> provision otiose.

No. I agree that the provision is a bit old, but it really has been
overtaken by events. It's main practical effect seems to be the
maintenance of the mythology about how certified copies are created ie
by a solicitor's certificate.

[Pelican]

On 11/07/2016 18:10, Chris R wrote:
> On 10/07/2016 19:02, Chris R wrote:
>> >
>> >> On 9/07/2016 20:44, the Omrud wrote:
>> >> > On 09/07/2016 09:45, Robin wrote:
>> >
>> >> > Does this really mean you can create a certified copy of an LPA
>> >> > yourself? Would it be accepted by banks, etc?
>> >>
>> >> The concept of a certified copy has no particular legal recognition in
>> >> English law. It is a very convenient thing to have, because it avoids
>> >> the loss of the original document. But, ultimately, what a certified
>> >> copy must be is determined by the person asking for the certified
>> copy.
>> >> If the person will accept the copy certified by anyone, so be it. If
>> >> they insist upon a method of certification, that's what must be done.
>> >
>> > Not correct I'm afraid.
>>
>> I'm afraid not.
>>
>> > Certified copies of powers of attorney are
>> > governed by section 3 Powers of Attorney Act 1971:
>> > http://www.legislation.gov.uk/ukpga/1971/27/section/3
>>
>> Section 3 is an empowering provision only about POA. People asking
>> for a certified copy of a POA may honour it, but there is no
>> obligation on anyone to accept it.
>
> They most certainly are obliged to accept it.

So you say. The reality is that they won't. At best, the attorney will
be invited to fill in the form required by the bank to enable the
attorney to access the account or open an account. It will usually be
mandatory, because the bank's rules will require it. Any attorney who
arrives with an original POA, or a certified copy, will usually have to
go through that process.

What is means is that, although lawyers understand a POA, most people
don't, and the banks that do will usually insist that their procedures
be followed.

> The attorney is entitled
> to give them valid instructions, and if they fail to obey them, they can
> be sued., or a complaint made to the Ombudsman. And in the case of
> enduring powers of attorney, they are likely to be guilty of unlawful
> age and disability discrimination.

Which for the great majority of attorneys is meaningless, and will be of
no practical assistance.

[Chris R]

That isn't my experience. I have had no difficulty getting banks to accept
copies certified in accordance with the Act in recent years - you might
occasionally have to get staff to refer to someone who knows what they are
doing. Any bank whose procedures impose more onerous requirements are liable
to be sued or criticised by the Ombudsman. What evidence do you have that
bank's will not accept copies certified under the Act?

> At best, the attorney will be invited to fill in the form required by the
> bank to enable the attorney to access the account or open an account. It
> will usually be mandatory, because the bank's rules will require it. Any
> attorney who arrives with an original POA, or a certified copy, will
> usually have to go through that process.

Is that surprising?

>
> What is means is that, although lawyers understand a POA, most people
> don't, and the banks that do will usually insist that their procedures be
> followed.

If they are inconsistent with the law, or unlawfully discriminatory, they
can be overturned.

>
> > The attorney is entitled
> > to give them valid instructions, and if they fail to obey them, they can
> > be sued., or a complaint made to the Ombudsman. And in the case of
> > enduring powers of attorney, they are likely to be guilty of unlawful
> > age and disability discrimination.
>
> Which for the great majority of attorneys is meaningless, and will be of
> no practical assistance.

It isn't meaningless at all. Are you suggesting that banks routinely refuse
attorneys access to accounts and just keep the customer's money? The
attorney is entitled, as a matter of law, to give instructions to the bank,
and to prove his entitlement by means of a copy certified under the Act.

[Robin]

How then are certified copies created?

I accept that in practice on many occasions the original LPA is taken to
a bank and the bank takes a copy for its records. But that is not a
certified copy and has no bearing on the fact that the bank should - and
IMLE does - accept a certified copy and take a copy of that. (It may
want other evidence as well - eg of the identity of the attorney - but
that seems to be a separate matter and justified by the fact that a LPA
is not a self-contained "bearer document".)

[Pelican]

No. What I am and have been saying is that a certified copy of any
document will have to comply with the requirements of the person asking
for it. That's the general principle. So far as POA are concerned, the
rules of most (if not all) banks and the like will have requirements
about additional paperwork required before a POA is accepted, and that
includes both the original POA and a copy. The effect of section 3 in
that situation is negligible, if not irrelevant.

More importantly, anyone who attempts to use a POA, or a copy, without
having first jumped through the administrative hoops will have real
difficulties. Any threat by the attorney of legal action, or any other
action, based on a bank not following the attorney's instructions will
be seen as hollow.

[Pelican]

I understand your question. A "certified" copy is simply a copy. In
practice, it depends upon the requirements of the accepting person (eg a
bank) about what they want. They can, and do, simply copy the original
themselves if it can be conveniently provided, and it's all done and
dusted, as you say.

Where that can't be done conveniently, a copy is provided. Typically,
it's called a "certified" copy ie someone writes or types on the copy
that they "certify" that it's a true copy of the original. There are
millions of these certified copies created, but they have no particular
legal status. The person who does the certifying is typically specified
by the accepting person. In principle, the document could be certified
by anyone at all. To give it more "authority", however, the person
doing the certifying might be a solicitor, or someone who has a really
impressive-looking stamp. That, of course, is mythology.

With POA, it's exactly the same, although section 3 is there.

But, in all cases, the requirements of the accepting person are what
counts, because accepting people are usually well-aware of the
possibility of fraudulent documents being manufactured, and they are
risk-averse to that kind of thing.

[Robin]

But because section 3 is there a copy of a power of attorney certified
in accordance with the Act can be relied upon to be recognised and
accepted in the circumstances people face day to day such as dealing
with a bank account or selling a house. The BBA set this out very
clearly in their guidance (which they produced partly because some banks
used to be less routinely compliant).

https://www.bba.org.uk/publication/leaflets/guidance-for-people-wanting-to-manage-a-bank-account-for-someone-else-2/#

"The LPA form you give to the bank or building society
must be:
- the original document or a copy which the OPG has
stamped every page of; or
- signed on every page by the donor, a solicitor or
a notary to confirm that it is a true copy of the
original LPA."

And the the Land Registry in their Practice Guide:

https://www.gov.uk/government/publications/powers-of-attorney-and-registered-land/practice-guide-9-powers-of-attorney-and-registered-land#types-of-power-of-attorney

"Section 3 of the Powers of Attorney Act 1971 prescribes a strict method
of proving the contents of a power of attorney. To follow this
procedure... In practice we will usually accept a photocopy that is
certified by a conveyancer to be a true copy of the original power.
However, in any case of doubt, we would ask you to produce either the
original or the more formal certified copy mentioned above."

> But, in all cases, the requirements of the accepting person are what
> counts, because accepting people are usually well-aware of the
> possibility of fraudulent documents being manufactured, and they are
> risk-averse to that kind of thing.

Risk-averse is one thing but arbitrary disregard of the law is another.

[Chris R]

No, a certified copy is as good as the original, by statute.

I agree with Robin.

What is more, I have registered certified copies of LPOAs with many
financial institutions without serious problems, and without having to
produce the original.

[Pelican]

The point of the discussion from my perspective is that you have to jump
through those hoops of the banks (etc) to get the POA "registered". The
POA itself (original or certified copy) doesn't cut it.

[Robin]

On 14/07/2016 13:45, Pelican wrote:
<snip

> The point of the discussion from my perspective is that you have to jump
> through those hoops of the banks (etc) to get the POA "registered". The
> POA itself (original or certified copy) doesn't cut it.

I tried to cover that in previous posts. And it seems to me
self-evident that a POA *alone* is not authority. After all, if I turn
up at a bank where I have an account and ask for (some of) the money I
have in it I expect to be asked to prove my identity. So if I give a
person A power of attorney to act for me I expect the bank similarly to
require A to prove his/her identity.