Dementia and LPA in England
A Dementia Diagnosis Does Not Automatically Prevent an LPA
This is the most common misconception families encounter. Under the Mental Capacity Act 2005, capacity is assessed decision by decision, at the point the decision needs to be made. A person with early-stage dementia, mild cognitive impairment, or even a moderate diagnosis may still have sufficient capacity to understand what an LPA is, who they are appointing, and what powers they are granting.
The legal test for capacity to create an LPA is whether the person can understand the information relevant to the decision, retain it long enough to make the decision, weigh it up, and communicate their choice. If they meet this test on the day they sign, the LPA is valid — regardless of their formal diagnosis.
When Capacity Fluctuates
Many people with dementia experience fluctuating capacity. They have clearer periods — often in the morning or at specific times of day — where they can engage meaningfully with decisions, and other periods where they cannot. The Mental Capacity Act explicitly recognises this: a person should not be treated as unable to make a decision merely because their capacity fluctuates.
For practical purposes, this means scheduling the LPA signing for a time when the donor is typically at their most lucid. The certificate provider should have their private conversation during this window, and the signing should happen on the same day or on another day when the donor is similarly clear.
If there is any concern about whether the donor's capacity is sufficient, a GP capacity assessment provides a formal medical opinion. The GP assesses the donor against the four-part capacity test and produces a written report. This report is not submitted to the OPG, but it serves as contemporaneous evidence that the donor had capacity at the time of signing — crucial if anyone later challenges the LPA.
Getting a GP Capacity Assessment
Contact the donor's GP surgery and request a mental capacity assessment specifically for the purpose of creating an LPA. The GP needs to know what decision they are assessing capacity for — the question is not "does this person have capacity in general?" but "does this person have capacity to understand and create a Lasting Power of Attorney?"
The GP will ask the donor to explain in their own words what an LPA is, who they want to appoint, and what powers they would be granting. The GP records their clinical findings and provides a written opinion.
Some surgeries treat this as a private report and may charge a fee, so ask about the cost in advance. If cost is a barrier, ask whether the surgery will conduct the assessment as part of the donor's ongoing care rather than as a private report.
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What Happens Without an LPA
If someone loses mental capacity without a registered LPA or valid registered EPA in place, no family member — regardless of how close the relationship — has automatic legal authority to manage their finances or make healthcare decisions. A spouse cannot access the other's sole bank accounts. An adult child cannot sell a parent's property to fund care home fees.
If no valid registered LPA or EPA exists and no correctly signed LPA remains available to submit for registration, the route is a Court of Protection deputyship application. If the donor signed and witnessed an LPA in the correct order before losing capacity, the donor or an attorney can still submit it to the OPG for registration. The application fee is £432, plus a £102 assessment fee. Processing takes 6 to 9 months. The court requires medical evidence of incapacity, a detailed financial plan, and often a security bond. Once appointed, the deputy pays the standard OPG supervision fee of £320 per year, or £35 under minimal supervision for qualifying property and affairs estates, and must file annual financial reports.
The contrast with an LPA is stark: £92 per document, processed in 8 to 10 weeks, no annual supervision, no court involvement, no security bond.
The Window Is Closing
The hardest conversation families avoid is the one that matters most. If your parent has received an early dementia diagnosis, the window for creating an LPA is open now but will not stay open indefinitely. Once capacity drops below the legal threshold, that door closes permanently. There is no mechanism to create an LPA after the fact.
Our LPA guide includes a capacity assessment preparation section and a signing sequence tracker designed for families working within fluctuating capacity windows.
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