LPA Capacity Test UK (2026): Mental Capacity to Make a Lasting Power of Attorney Under the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA 2005) sets out the legal framework for assessing mental capacity in England and Wales. For an LPA, the relevant capacity assessment is: does the donor have capacity to make the LPA? The test has TWO STAGES: (1) THE DIAGNOSTIC THRESHOLD (s.2 MCA 2005): there must be an 'impairment of, or disturbance in the functioning of, the mind or brain'. This can include: (a) dementia (early, moderate, or advanced); (b) brain injury (stroke, accident); (c) mental illness (psychosis, severe depression); (d) learning disability; (e) alcohol or drug intoxication (at the time of the decision). If there is NO impairment or disturbance, capacity is assumed — the diagnostic threshold is not met and the person has capacity without further inquiry; (2) THE FUNCTIONAL TEST (s.3 MCA 2005): IF the diagnostic threshold is met, the question becomes whether the impairment causes the person to be UNABLE to make the specific decision — in this case, the decision to make an LPA. Under s.3(1), a person is unable to make a decision if they cannot: (a) UNDERSTAND the information relevant to the decision; (b) RETAIN that information; (c) USE OR WEIGH that information as part of the process of making the decision; (d) COMMUNICATE their decision (by any means — speech, sign language, writing, eye movement); (3) THE DECISION-SPECIFIC NATURE OF CAPACITY: capacity under the MCA 2005 is DECISION-SPECIFIC. A person may lack capacity to manage complex finances but retain capacity to make an LPA. A person may have capacity in the morning but not in the afternoon (particularly with dementia — 'lucid intervals'). Capacity must be assessed for the specific decision to make the LPA at the specific time of signing; (4) RELEVANT INFORMATION FOR AN LPA DECISION: to have capacity to make an LPA, the donor must understand: (a) what an LPA is and what it does; (b) the nature and effect of the specific type (property and affairs or health and welfare); (c) who the proposed attorneys are and what powers they will have; (d) that the LPA can only be used after registration with OPG; (e) that the donor can revoke the LPA while they still have capacity; (f) that once they lose capacity, the LPA cannot be revoked without a Court of Protection application.

The LPA form requires a CERTIFICATE PROVIDER to certify that the donor has capacity to make the LPA. The certificate provider plays a central role in the LPA capacity assessment: (1) THE CERTIFICATE PROVIDER — LEGAL REQUIREMENT: every LPA must include a certificate signed by a certificate provider (LPA regulations, Mental Capacity Act 2005 s.10 and Schedule 1 para 2). The certificate provider certifies three things: (a) in their opinion, the donor UNDERSTANDS the purpose of the LPA and the scope of the authority conferred; (b) there is NO FRAUD or UNDUE PRESSURE being exerted on the donor; (c) there is NOTHING ELSE that would prevent the LPA being created; (2) WHO CAN BE A CERTIFICATE PROVIDER: there are TWO CATEGORIES of certificate provider: (a) CATEGORY A — KNOWLEDGE: someone who has known the donor personally for at least two years (not just professionally) — for example, a friend, neighbour, colleague, or former colleague; (b) CATEGORY B — PROFESSIONAL SKILL: someone with relevant professional skills to certify capacity — including a registered healthcare professional (GP, consultant, nurse), a barrister or solicitor in practice, a registered social worker, or an independent mental capacity advocate (IMCA). A solicitor is the most common category B certificate provider; (3) WHO CANNOT BE A CERTIFICATE PROVIDER: the certificate provider CANNOT be: (a) an attorney under the LPA or a replacement attorney; (b) a family member of the donor; (c) a business partner or employee of an attorney; (d) a family member of an attorney; (e) a director or employee of a trust corporation acting as attorney; (4) THE CERTIFICATE PROVIDER'S ASSESSMENT: the certificate provider must satisfy themselves that the donor has capacity at the time of signing. They should: (a) interview the donor separately from the attorneys; (b) ask the donor questions to assess their understanding; (c) if in doubt (particularly where there are signs of dementia), recommend a formal capacity assessment by a GP or consultant; (5) THE CERTIFICATE IS NOT DEFINITIVE: the certificate provider's certificate is evidence of capacity but is not conclusive. If capacity is subsequently disputed (for example, by a family member applying to the Court of Protection), the certificate can be challenged — the court will apply the MCA 2005 test to all the evidence.

Borderline capacity is one of the most practically challenging areas in LPA work. The key principles are: (1) PRESUMPTION OF CAPACITY — MCA 2005 s.1(2): the MCA 2005 establishes a PRESUMPTION that every adult has capacity unless it is established otherwise. The burden of proving incapacity lies on the person asserting it — not on the person wishing to act or to make an LPA. The certificate provider should not refuse to certify capacity simply because the donor has dementia or a cognitive impairment — the question is whether the impairment is sufficient to prevent understanding of the specific LPA decision; (2) BEST TIME OF DAY FOR ASSESSMENT: for people with dementia, capacity fluctuates. The assessment should take place at the time of day when the person is most alert — typically morning for many people with dementia. If the donor can demonstrate understanding at the time of signing, even if their capacity fluctuates at other times, they have capacity for the LPA; (3) SUPPORTED DECISION-MAKING: under MCA 2005 s.3(2), the fact that a person needs information in a simplified form or needs more time to make a decision does NOT mean they lack capacity. All practicable steps should be taken to help the person understand before concluding they lack capacity — including: (a) using simpler language; (b) using visual aids or written summaries; (c) choosing a better time of day; (d) involving a trusted support person (not an attorney); (4) FORMAL CAPACITY ASSESSMENT BY GP OR CONSULTANT: where capacity is genuinely borderline, the solicitor or certificate provider should recommend that the donor's GP or a specialist (typically a geriatric psychiatrist or neurologist) carries out a formal capacity assessment. The GP can produce a written report confirming capacity for the specific LPA decision; (5) IF THE DONOR LACKS CAPACITY — DEPUTYSHIP: if the donor has already lost the capacity to make an LPA, the LPA route is CLOSED. The only alternative is for a family member or professional to apply to the Court of Protection for a DEPUTYSHIP ORDER under MCA 2005 s.16 — appointing a deputy to manage the person's affairs. Deputyship is significantly more expensive (£300+ court fee plus solicitor costs) and more restrictive than an LPA. This is why LPAs should be made as early as possible.

A diagnosis of dementia does NOT automatically mean a person lacks capacity to make an LPA. Whether they have capacity depends on the STAGE of the dementia and the specific capacity test: (1) EARLY-STAGE DEMENTIA — CAPACITY LIKELY PRESERVED: in the early stages of Alzheimer's disease or other dementias, the person may retain full capacity to make an LPA. Memory difficulties do not in themselves mean the person cannot understand what an LPA is and what it does — the relevant question is whether they can understand and weigh the specific information about the LPA decision; (2) MODERATE DEMENTIA — CAPACITY MAY BE BORDERLINE: in moderate dementia, capacity to make an LPA may be borderline. A formal assessment by the GP or a specialist is recommended. The assessment should be documented carefully — ideally in a written report — in case the LPA is later challenged; (3) ADVANCED DEMENTIA — CAPACITY LIKELY LOST: in advanced dementia, the person is likely to lack capacity to make an LPA. The certificate provider should not certify capacity, and a deputyship application to the Court of Protection may be necessary; (4) CASES WHERE CAPACITY IS RETAINED DESPITE DIAGNOSIS: the courts have confirmed in a number of cases that capacity is decision-specific and that a diagnosis of dementia does not preclude capacity for specific decisions. In Re P [2010] EWHC 1592 (Ch), Lewison J confirmed that 'capacity fluctuates' and that capacity is assessed at the time of the specific decision. A person with moderate dementia who is lucid at the time of signing may have valid capacity for the LPA; (5) THE IMPORTANCE OF ACTING EARLY: family members who notice early signs of cognitive decline should encourage their relatives to make an LPA PROMPTLY — before capacity is lost. Delay increases the risk that capacity will have deteriorated by the time the LPA is signed, necessitating the more burdensome deputyship route.

An LPA can be challenged on the grounds that the donor lacked capacity at the time of signing. The procedure for challenging an LPA is: (1) OBJECTION TO REGISTRATION WITH OPG: when an LPA is submitted to the Office of the Public Guardian (OPG) for registration, named persons (including family members who were notified) have the right to object on specific grounds — including that the donor lacked capacity. An objection on grounds of lack of capacity must be sent to the OPG and/or to the Court of Protection within 3 weeks of receiving the notification; (2) COURT OF PROTECTION APPLICATION: anyone with a legitimate interest (including family members, the OPG, or an attorney) can apply to the Court of Protection to have an LPA declared invalid. The court will: (a) assess all the evidence of capacity at the time of signing — including medical records, contemporaneous witness evidence, and the certificate provider's statement; (b) apply the MCA 2005 two-stage test to the evidence available at the time of signing (not the current state of the donor's capacity); (c) if it finds the donor lacked capacity, declare the LPA invalid — it will have no legal effect regardless of whether it was registered; (3) PRACTICAL EVIDENCE IN CAPACITY DISPUTES: the most valuable evidence in a capacity dispute is: (a) the certificate provider's detailed file note of the capacity assessment; (b) a contemporary medical report or GP letter confirming capacity; (c) witness evidence from people who saw the donor near the time of signing; (d) solicitor attendance notes where a solicitor was involved in the LPA preparation; (4) UNDUE INFLUENCE — A RELATED GROUND: an LPA can also be challenged on the ground that the donor was subjected to UNDUE INFLUENCE — pressure from an attorney or third party that overrode the donor's free will. The MCA 2005 s.10(7) and Schedule 1 require the certificate provider to confirm there was no fraud or undue pressure; (5) THE OPG INVESTIGATIONS TEAM: the OPG has an investigations team that can investigate concerns about abuse of an LPA — including whether capacity existed at the time of signing. Concerns can be reported to the OPG at gov.uk/report-concern-about-attorney-deputy-guardian.