Certificate Provider & Trust Corporations as Attorneys

Have any members encountered a problem where the firms Trust Corporation is appointed as a attorney of an LPA and a solicitor from the firm has acted as certificate provider for the donor? The assistant on the helpdesk at the OPG has indicated that the solicitor/certificate provider is an employee/business partner of the Trust Corporation hence can not act as as certificate provider. Is the Trust Corporation not a separate legal entity hence the solicitor is not a business partner or employee? I would welcome your comment/and or views.

Mahendree Naidoo
Kingston Smith

Funnily enough we were looking at this issue last week. The OPG guidance disqualifies anyone employed by or working for a trust corporation…

“Employed by” is a matter of fact, and certainly our trust corporation doesn’t employ anyone.

“Working for” is more subjective. Is S, a solicitor who works for a law firm, automatically also working for a trust corporation which appoints that law firm to act for it? I don’t see it myself. The relationship is between the trust corporation and the law firm. S’s certificate is provided as a solicitor with the law firm. Is the position different because the law firm owns the trust corporation? The guidance makes no distinction.

If S was also a director of the trust corporation (in my firm that covers the private client partners) then I can see S would be “working for” the trust corporation and according to the guidance would then be disqualified.

Simon Leney
Cripps LLP