One of the most common worries I hear from families is “Have we left it too late?” They’ve noticed their mum struggling to follow conversations, or their dad repeating the same questions over and over, and now they’re wondering whether it’s still legally possible to put a Lasting Power of Attorney in place.
The honest answer is: it depends – and the law is more nuanced here than most people realise.
Key points covered in this post:
- What the Mental Capacity Act actually requires for an LPA to be valid
- What the person making the LPA needs to be able to understand
- How to support someone whose capacity feels “on the edge”
- When a formal, independent capacity assessment is the right step
What the Law Actually Requires
The Mental Capacity Act 2005 starts from a position of respect. It says that every adult must be assumed to have capacity unless there is clear evidence that they do not, and that all practicable steps must be taken to help someone make a decision before concluding that they cannot.
Crucially, capacity is both decision-specific and time-specific. The question is never “do they have dementia?” It is always “can this person understand and decide about making an LPA, right now, today?” Those are very different questions, and confusing them causes families a lot of unnecessary distress.
For an LPA to be valid, the person making it (the donor) must have capacity at the point they sign it. The law also requires a certificate provider to confirm that the donor understands what they are signing, that there is no fraud or undue pressure involved, and that nothing else stands in the way of a valid LPA being created.
What Does the Donor Actually Need to Understand?
In practice, when I carry out an assessment for LPA capacity, I am exploring five core areas.
What an LPA is. Can the person grasp that they are giving authority to someone they trust to make decisions on their behalf, if they lose capacity in the future?
The scope of the decisions involved. Do they understand that a Property and Financial Affairs LPA covers money and assets, while a Health and Welfare LPA covers care and medical treatment, and that these are separate documents?
The consequences. Can they appreciate that their attorney will be able to act in their place, that this authority continues if they lose capacity, and that they can set conditions or limits?
The ability to weigh up options. Can they think through who to appoint, whether to appoint more than one person, and what the risks might be if things go wrong?
A clear, consistent choice. Can they communicate that decision, whether in words, writing, or other reliable means?
One thing the Act is very clear about: a person is not to be treated as lacking capacity simply because others think their choice is unwise. The test is about understanding, weighing, and communicating, not about reaching a particular conclusion.
Supporting Someone Whose Capacity Feels “On the Edge”
Where capacity feels borderline, the law doesn’t simply say “that’s too risky, stop here.” It expects everyone involved to do all that is practicable to support the person’s decision-making first.
In my experience, small adjustments can make a significant difference.
Timing matters. For many people with cognitive difficulties, capacity fluctuates across the day. A morning appointment, when the person is rested, is often far more productive than an afternoon one when fatigue has set in.
Keep information manageable. Rather than presenting the whole picture at once, breaking it into small, concrete chunks and checking understanding at each stage gives the person the best chance of engaging meaningfully. Plain language, written summaries, or simple diagrams can all help.
Don’t rush to a signature. Where possible, I encourage families to allow time between the initial conversation and the signing appointment. This gives the person space to reflect, ask questions, and return to it with fresh eyes.
Repetition is not a failure. The Act accepts that a person may only retain information for a short period. Gentle recap and repetition during a conversation can still be entirely compatible with capacity.
If, after all of this support, the person can engage with the key points in a broadly consistent way, there’s a sound argument that they retain capacity to make the LPA. Where they can’t understand what an LPA is, consistently muddle up who they are appointing, or can’t grasp that the attorney would act if they lost capacity, then the picture is a different one.
When to Seek a Formal Capacity Assessment
There is no legal requirement for a separate capacity assessment before every LPA. The certificate provider carries a duty to satisfy themselves that the donor has capacity and is acting freely.
However, in borderline cases, an independent assessment can be critical, particularly if the LPA is ever challenged by family members, professionals, the Office of the Public Guardian, or the Court of Protection.
I usually recommend seeking a formal assessment where:
- There is a diagnosed condition affecting cognition – such as dementia or acquired brain injury – and there have been recent episodes of confusion about money or major decisions.
- Different professionals or family members have expressed conflicting views about whether the person “knows what they are doing.”
- There are concerns about undue influence, for example where one relative appears to be driving the process and the donor seems hesitant or uncomfortable.
- The estate is complex, or there is a real risk of a later legal challenge between family members or attorneys.
A well-documented, independently produced capacity assessment sets out exactly how the information was presented, how the person responded, and how the conclusion was reached. For solicitors and families alike, that kind of clear, reasoned report provides real confidence that the decision will hold up if it is ever questioned.
Why Independent Assessment Helps
Local authority social workers carry significant caseloads and are primarily focused on immediate care and safeguarding concerns. Detailed, decision-specific LPA capacity assessments are rarely something they have scope to take on at short notice.
As an independent social worker, I work differently. I come to the person’s own environment, at a time that suits them, and I focus entirely on their understanding, their wishes, and their values. There is no organisational pressure. There’s no conflict of interest. My only job is to form an honest, evidence-based view and to record it clearly.
That assessment can do one of two things. It can confirm that the LPA can still be made safely, giving families and solicitors the confidence to proceed. Or it can clarify that capacity is no longer present, and that a Court of Protection deputyship is now the safer legal route. Either way, families are not left guessing.
If you’re worried that time is running out for a loved one, please don’t leave it without taking advice. Get in touch and we can have an honest conversation about where things stand and what the right next step looks like.
Questions Families Often Ask About Borderline LPA Capacity
Can someone with dementia still make a Lasting Power of Attorney?
Yes, in many cases they can. A diagnosis of dementia does not automatically mean a person lacks capacity. Under the Mental Capacity Act 2005, capacity is assessed for a specific decision at a specific point in time, not based on diagnosis alone. If the person can understand what an LPA is, appreciate the consequences of signing one, and communicate a consistent choice, they may well still have the capacity to make one.
Who decides whether someone has capacity to make an LPA?
For an LPA, the certificate provider has a duty to confirm that the donor understands the purpose and scope of the document and is not acting under undue pressure. In borderline cases, an independent mental capacity assessment by a qualified professional, such as a social worker or psychologist, provides a more detailed and legally defensible record of how the assessment was conducted and what the conclusion was.
What if capacity fluctuates day to day?
Fluctuating capacity is common in conditions like dementia, and the law accounts for this. Capacity only needs to be present at the time the LPA is executed, not continuously. Arranging an appointment at the time of day when the person is typically at their best, and taking steps to minimise fatigue and distraction, can make a real difference to the outcome.
What happens if we miss the window and capacity is lost?
If a person loses capacity before an LPA is in place, it is no longer possible to make one. At that point, anyone wishing to manage their affairs would need to apply to the Court of Protection for a deputyship order, which is a more lengthy and costly process. Acting promptly, even where capacity feels borderline, is always worth exploring with professional advice.
Can a family member be present during a capacity assessment for LPA?
A family member can be present for support, but the assessment itself must focus on the individual’s own understanding and wishes, free from prompting or pressure. In some cases, I will ask to spend part of the appointment with the person alone, particularly where there are concerns about undue influence, to make sure the views expressed are genuinely their own.
Is an independent capacity assessment legally required for an LPA?
No, it is not a legal requirement in every case. The certificate provider carries responsibility for confirming the donor’s capacity at the point of signing. However, in borderline or disputed cases, an independent assessment provides a detailed, documented record that can withstand scrutiny from the Office of the Public Guardian or the Court of Protection if the LPA is ever challenged.
How is AJH Social Work different from going through a solicitor for an LPA capacity assessment?
A solicitor can prepare and register an LPA, but the capacity assessment itself requires a social worker, psychologist, or other suitably qualified professional. As an independent social worker, I assess capacity in the person’s own environment, at a pace and in a format that suits them, and produce a clear written report designed to meet the standards expected by the Court of Protection. I work independently of any local authority or care provider, so there are no conflicts of interest.
