Dementia and Lasting Power of Attorney in England

A Dementia Diagnosis Does Not Automatically Prevent Signing

This is the point most families get wrong. A diagnosis of dementia — even a diagnosis of Alzheimer's disease — does not automatically mean the person lacks the mental capacity to create a Lasting Power of Attorney. Capacity under the Mental Capacity Act 2005 is assessed in relation to each specific decision at the specific time it is made.

The legal test asks four questions: Can the person understand the information relevant to the decision? Can they retain that information long enough to weigh it up? Can they weigh the information as part of making the decision? Can they communicate their decision (by any means)?

If the answer to all four is yes at the time of signing, the person has capacity to create the LPA — regardless of their diagnosis.

Early-Stage Dementia and the Window of Opportunity

In the early stages of dementia, many people retain full decision-making capacity. They may have memory lapses, difficulty with complex tasks, or occasional confusion, but they understand what an LPA is, what powers it grants, and who they are appointing. This is the window to act.

The practical challenge is urgency. Dementia is progressive, and the window between diagnosis and loss of capacity varies enormously — from years in some cases to months in others. Families who delay often find that by the time they get around to arranging the LPA, the donor's capacity has declined past the threshold.

The strongest approach: create the LPA as soon as possible after the diagnosis, while capacity is clear. If there is any doubt about whether the donor currently has capacity, arrange a formal capacity assessment before starting the LPA process.

Fluctuating Capacity

Some forms of dementia — particularly Lewy body dementia and vascular dementia — cause fluctuating capacity. The person may have good days and bad days, clear mornings and confused afternoons. Under the Mental Capacity Act, an LPA can be signed during a period of capacity even if the person lacks capacity at other times.

The key is timing the signing for a period when the donor has capacity. The certificate provider (the independent person who confirms the donor understands the LPA) should assess the donor during a lucid period and document that they were satisfied of the donor's capacity at the specific time of signing.

For additional protection, the donor's GP or a specialist can provide a contemporaneous capacity assessment — a written opinion confirming that the donor had capacity on the day they signed. This is not legally required, but it provides valuable evidence if the LPA is later challenged on capacity grounds.

GP Capacity Assessments

A GP capacity assessment for LPA purposes is a clinical appointment where the doctor assesses the donor against the four-part Mental Capacity Act test. The GP will typically spend 20 to 30 minutes with the donor, asking questions designed to test understanding, retention, and reasoning.

GPs are not obliged to provide capacity assessments, and some charge a private fee (typically £100 to £250) since this is not covered by standard NHS services. However, many GPs will provide a brief capacity letter at no charge if the donor is an existing patient and the assessment is straightforward.

If the GP is unwilling or unable to provide an assessment, a specialist (a consultant psychiatrist, neuropsychologist, or memory clinic consultant) can perform the assessment instead. Specialist assessments carry more weight in any subsequent challenge but are more expensive and harder to arrange.

When It Is Too Late

Once a person has permanently lost mental capacity, they cannot create a new LPA. There is no workaround, no special provision, and no court process that allows an LPA to be created on behalf of someone who lacks capacity. If they signed an LPA before losing capacity, however, the attorneys may still be able to apply to register it.

If there is no signed LPA and no existing EPA to register, the usual route at that point is to apply to the Court of Protection for a deputyship order. This process costs £432 to apply for (plus a £102 assessment fee), takes 6 to 9 months, and imposes ongoing annual supervision fees of £320. The deputy must file annual financial reports to the OPG and may need to take out a security bond.

The contrast with an LPA is stark. An LPA costs £92, takes 8 to 10 weeks, and has no ongoing fees. The case for acting early is overwhelmingly practical, not just emotional.

For a complete guide to the LPA process, including how to coordinate signing around fluctuating capacity and what the certificate provider needs to assess, see our Lasting Power of Attorney guide.

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