A diagnosis does not automatically remove capacity
The legal question is whether the donor can understand, retain, use or weigh the relevant information and communicate the decision when the LPA is made.
Why timing matters
An LPA cannot be created after the donor has lost the capacity needed to make it. Families often assume a spouse or adult child will automatically gain authority, but banks and other organisations may require formal legal authority.
Property and Financial Affairs LPA
This LPA can cover banking, bills, investments and property. Subject to the document and registration, it can generally be used with the donor’s permission while they still have capacity, as well as after capacity is lost.
Health and Welfare LPA
Health and Welfare attorneys can make relevant decisions only when the donor lacks capacity to make that particular decision. The LPA can also deal with authority concerning life-sustaining treatment if the donor grants it.
What happens if there is no LPA?
If capacity has already been lost, an application to the Court of Protection for a deputyship order may need to be considered for financial matters. This is a different process and can be more time-consuming and expensive than making an LPA in advance.
The certificate provider matters
The certificate provider confirms that the donor understands the LPA, is not being pressured and there is no other reason the document should not proceed. Where capacity may be borderline, careful professional handling is particularly important.
Register before it is urgently needed
An LPA cannot be used until it is registered with the Office of the Public Guardian. Registration takes time, so making and registering the documents before a crisis avoids a protection gap.
Frequently asked questions
Can someone with dementia make an LPA?
Possibly. A diagnosis does not automatically remove capacity. The person must have the capacity to understand and make the LPA at the time.
Can family make an LPA for someone who has lost capacity?
No. An LPA is made by the donor. If the donor lacks the relevant capacity, a Court of Protection route may need to be considered.
Can a Finance LPA be used before capacity is lost?
Potentially, if the LPA is registered and its terms permit use with the donor’s authority.
When can a Health and Welfare LPA be used?
For a particular health or welfare decision, when the donor lacks capacity to make that decision themselves.
Tell us what you want to achieve
You do not need to know the name of the legal document or trust before speaking to us. Explain the family, property or planning issue and we can discuss the relevant options.