Can You Make an LPA After a Diagnosis UK (2026)? Capacity, Timing and What to Do Now

Yes — a diagnosis of dementia does not automatically mean you have lost the mental capacity to make a Lasting Power of Attorney. Many people diagnosed with early-stage dementia or mild cognitive impairment retain full capacity to make an LPA for months or years after diagnosis. The key points: (1) CAPACITY IS DECISION-SPECIFIC AND TIME-SPECIFIC (Mental Capacity Act 2005 ss.2-3): the MCA does not make a global assessment of whether a person 'has capacity'. Instead, it asks whether the person has the capacity to make a specific decision at a specific time. A person may have capacity to make an LPA today but not in six months. A person may have capacity in the morning but not in the afternoon (fluctuating conditions). The assessment is functional — can this person, right now, understand, retain, use, and weigh the information relevant to this decision, and communicate their decision?; (2) THE FOUR-PART MCA CAPACITY TEST (s.3): to have capacity to make the LPA, the person must be able to: (a) Understand the information relevant to the decision (what an LPA is; what powers are being given; who the attorneys are; when the LPA can be used); (b) Retain the information long enough to use it in the decision-making process (even if only briefly); (c) Use or weigh that information as part of the process of making the decision (balance pros and cons; consider alternatives); (d) Communicate the decision (by any means — speech, writing, sign language, or other methods); (3) PRESUMPTION OF CAPACITY: the MCA s.1 states that a person must be assumed to have capacity unless it is established otherwise. The burden of proof is on anyone who challenges capacity — not on the person making the LPA to prove they have it; (4) TIME IS CRITICAL: early-stage dementia progresses. The window for making an LPA may be shorter than expected. Once capacity is lost, an LPA cannot be made. The ONLY alternative is a Court of Protection Deputyship — a 6-12 month process costing £3,000-£5,000+. Do not delay; (5) CONTACT A SOLICITOR TODAY: a solicitor experienced in LPAs can assess the situation, advise on timing, ensure the MCA capacity test is met, arrange a contemporaneous GP assessment (the Golden Rule), and submit the registration to the OPG promptly.

The tests for capacity to make an LPA and capacity to make a will (testamentary capacity) are different in important ways: (1) WILL-MAKING CAPACITY — BANKS v GOODFELLOW TEST: the test for testamentary capacity comes from the Victorian case Banks v Goodfellow [1870] LR 5 QB 549. It requires the testator to: (a) understand the nature of making a will; (b) understand the extent of their property; (c) understand the claims of those who might expect to benefit; (d) not be suffering from a disorder of mind that perverts their faculties. The Banks v Goodfellow test is a common law (case law) test developed in 1870, and it is specifically tailored to wills. It does not apply to LPAs; (2) LPA CAPACITY — MCA 2005 s.2-3 FUNCTIONAL TEST: the Mental Capacity Act 2005 (which came into force in 2007) replaced earlier common law tests for decisions other than wills with the functional test in ss.2-3 (described in Q1 above). The MCA test applies to ALL decisions under the Act — including making an LPA, giving consent to medical treatment, making financial decisions. It is decision-specific and time-specific; (3) WHICH TEST IS HARDER TO MEET: it depends on the individual and the decision. In practice, for LPAs: the donor needs to understand what an LPA is; who the attorneys are; what powers they are granting; when the LPA can be used; that they can revoke it if they have capacity in future. For a P&FA LPA in particular (which gives wide financial powers), the donor must understand the significance of those powers. This is arguably more demanding than will-making in some respects; (4) DIAGNOSIS AFFECTS BOTH, BUT DIFFERENTLY: for wills — a solicitor applying the Golden Rule (Kenward v Adams) will arrange a contemporaneous GP assessment. For LPAs — the OPG requires the certificate provider (a professional or person of standing who has known the donor for 2 years) to certify that the donor has capacity. The certificate provider is not simply confirming the donor is 'not incapacitated' — they are specifically certifying the MCA s.2-3 test is met; (5) PRACTICAL TAKEAWAY: after a diagnosis, capacity for both wills AND LPAs should be assessed without delay. Both instruments can potentially be made in the same session, with a GP present to provide contemporaneous assessment and a solicitor to document the execution.

The Golden Rule in the context of LPAs (and wills) is a professional practice principle that applies when the donor's mental capacity is, or may be, in doubt: (1) THE GOLDEN RULE — ORIGIN: the Golden Rule was articulated by Templeman J in Kenward v Adams [1975] CLY 3591 in the context of wills. The same principle now applies by analogy to LPAs. It states that: when the donor of an LPA is elderly or is suffering from illness that may affect mental capacity, the solicitor (or other professional) making the LPA should ensure that a contemporaneous medical assessment of capacity is made and recorded; (2) THE GOLDEN RULE IN PRACTICE FOR LPAS: (a) The certificate provider for the LPA (who certifies capacity) should ideally be a doctor — specifically the donor's GP; (b) The GP should attend the signing of the LPA; (c) The GP should be given a copy of the MCA s.2-3 test and asked to assess the donor specifically against that test; (d) The GP should record their assessment in writing on the same day; (e) The GP's notes and assessment should be preserved — these are the primary evidence if capacity is later challenged; (3) WHO CAN BE A CERTIFICATE PROVIDER: an LPA requires a certificate provider to complete Part B of the LPA form. The certificate provider must be: (a) a professional who is independent of the donor and attorneys (solicitor; GP; registered healthcare professional); OR (b) someone who has known the donor personally for at least 2 years. Where capacity is in doubt, a professional — ideally the GP — is essential; (4) WHAT THE CERTIFICATE CERTIFIES: the certificate provider confirms: (a) the donor understands the purpose and scope of the LPA; (b) no undue pressure has been placed on the donor to create the LPA; (c) there is no other reason why the LPA should not be registered. These are not mere formalities — the certificate provider's professional judgment is scrutinised if the LPA is ever challenged; (5) OPG REVIEW: the Office of the Public Guardian (OPG) reviews certificates carefully when there are indicators that capacity may be compromised. An incomplete or inadequate certificate can result in the OPG refusing to register the LPA.

If a person no longer has capacity to make an LPA, the LPA cannot be made — no matter how recent the diagnosis or how mild the condition. The only alternative is a Court of Protection Deputyship: (1) COURT OF PROTECTION DEPUTYSHIP (MCA 2005 ss.16-17): where a person lacks capacity to make financial or personal welfare decisions, the Court of Protection can appoint a deputy to make those decisions for them. The deputy is usually a family member (spouse; adult child) or a professional (solicitor; accountant). The deputy acts under the court's supervision and must follow the MCA 2005 Code of Practice; (2) THE DEPUTYSHIP PROCESS: (a) Application: complete court forms COP1 (application notice); COP3 (assessment of capacity — completed by a doctor); COP4 (deputy's declaration); COP1A (supplementary form for property and financial affairs) or COP1B (personal welfare). File with HMCTS Court of Protection with the court fee (£371 for a property/financial affairs application; £408 for personal welfare); (b) Notification: the person who lacks capacity ('P') and all 'relevant persons' (close family) must be notified and given the opportunity to object; (c) Court hearing: for straightforward applications, the court may make a decision on papers without a hearing. For contested applications, a hearing is scheduled; (d) Order: the court issues a deputyship order specifying the deputy's powers. For property and financial affairs, the deputy can then manage bank accounts, pay bills, sell property, manage investments — but must keep accounts and report to the OPG annually; (3) COSTS: court fees: approximately £800-£1,200. Solicitor's fees to make the application: £1,500-£4,000+. OPG bond/insurance: £200-£600/yr. OPG supervision fee: £320/yr (General Supervision). Total first year: approximately £3,000-£6,000+. Contrast with LPA registration (OPG fee £82 per LPA — £164 for both LP1F + LP1H); (4) TIMESCALE: 6-12 months from application to deputyship order, longer if contested; (5) LIMITATIONS: a deputy has less flexibility than an attorney under an LPA. Many actions require separate court applications (selling the main home; making gifts above the OPG's de minimis threshold; making decisions about medical treatment for personal welfare); (6) THE CRITICAL MESSAGE: if someone close to you has been diagnosed with a condition that may affect capacity, apply for the LPA NOW — before capacity is lost.

Speed of registration is critical when capacity may be declining. The OPG registration process takes 8-20 weeks after the application is submitted — which means the LPA must be completed and submitted promptly: (1) THE REGISTRATION TIMELINE: (a) Preparation: 1-5 days (with a solicitor or using OPG Online); (b) Certificate provider certification and signing: 1 day (can be done in the same session as a GP assessment); (c) Submit to OPG with fee (£82 per LPA): same day; (d) OPG processing: typically 8-12 weeks (sometimes up to 20 weeks in peak periods); (e) Registered LPA received; (2) THE LP1F MUST BE SIGNED BEFORE REGISTRATION CAN COMPLETE: the OPG will not register an LPA until: (a) All parties have signed (donor; certificate provider; attorneys; replacement attorneys if any); (b) The 4-week notification period has passed (attorneys must notify the donor's named 'people to notify' and wait 4 weeks for objections before the OPG registers). The notification period runs concurrently with OPG processing in practice; (3) CAN THE LPA BE USED BEFORE REGISTRATION: NO — a Property and Financial Affairs LPA cannot be used until it is registered with the OPG. A Health and Welfare LPA can only be used after registration AND only when the donor lacks capacity. This is why urgent registration matters; (4) URGENT REGISTRATION (EXPEDITED PROCESSING): the OPG can process a registration urgently if there is evidence of vulnerability — e.g. a letter from a doctor confirming the donor's condition is deteriorating rapidly. Contact the OPG directly and provide medical evidence. The OPG will prioritise urgent applications; (5) OPG ONLINE: using the OPG Online tool (LPA online service) is faster than paper forms. The system guides through the process and submits digitally. The solicitor or the donor/attorney can use the online system; (6) SIMULTANEOUS LP1F AND LP1H: register both the Property & Financial Affairs LPA (LP1F) and the Health & Welfare LPA (LP1H) at the same time. Pay both £82 fees simultaneously. Both will be processed together. Total: £164 for both LPAs — the most urgent and cost-effective protection available.