Can You Make an LPA After a Dementia Diagnosis?
A dementia diagnosis can prompt an urgent family conversation about lasting powers of attorney. It can also lead to a mistaken assumption: that the opportunity has already passed. A diagnosis alone does not answer whether someone can make an LPA. The relevant question is whether that person has the mental capacity to make the particular LPA at the time, with appropriate support.
This guide concerns LPAs in England and Wales. It explains how to approach that conversation without excluding the person, coaching their answers or treating a signature as proof that everything is in order. Family involvement can be helpful, but the decision must remain the donor's own.
A diagnosis and a capacity decision are different
Dementia affects people in different ways. Someone may need help with everyday tasks and still be able to decide whether to make an LPA. Equally, appearing comfortable in a familiar conversation does not establish that they understand the authority the document would give.
The Mental Capacity Act framework starts with a presumption of capacity. It requires practicable support before concluding that someone cannot decide. Capacity relates to a specific decision and time. An unwise choice, a diagnosis or disagreement with relatives is not enough on its own to establish incapacity.
What needs to be considered for an LPA?
The person needs to be able to understand the relevant information, retain it long enough to decide, use or weigh it, and communicate their decision. The legal test also concerns whether an inability to decide results from an impairment or disturbance in the functioning of the mind or brain. It is not a general memory quiz.
For an LPA, the discussion needs to address the nature and effect of the proposed arrangement. That includes who would act, the decisions involved and the consequences of granting authority. A professional should consider the actual document and circumstances, rather than relying on a relative's statement that the person has always trusted someone.
Support the conversation before judging the answer
A practical starting point is to ask how the person communicates best. They may benefit from a quiet room, glasses or hearing aids, accessible information, shorter explanations or a time of day when they are more alert. Allow pauses and give them an opportunity to ask questions.
These are ways to support a decision, not ways to obtain a preferred answer. Avoid repeatedly practising a set response for an appointment. A person should be able to express uncertainty, disagree with a proposed attorney or decide that they do not want to proceed. If communication is difficult, seek appropriate help rather than assuming that difficulty means incapacity.
Family members can organise, but cannot make the choice
Relatives can help arrange appointments, locate existing documents and explain practical concerns. They should distinguish those tasks from choosing the donor's attorneys or instructions. Being a spouse, adult child or main carer does not allow someone to make an LPA on another person's behalf.
A useful preparation exercise is to separate the person's wishes from the family's suggestions. Record questions that need explaining instead of filling the gaps with assumptions. Where possible, make space for the donor to speak independently. If there is pressure, conflict or uncertainty about whose wishes are being expressed, raise it before signing anything.
When might a professional assessment be needed?
The Office of the Public Guardian's LP12 guidance explains that a medical assessment may be needed if there are doubts about capacity. Its purpose is to address the relevant decision, not simply to confirm the diagnosis. Discuss the concern early with the person helping to prepare the LPA and, where appropriate, a suitably qualified professional.
The certificate provider also has an important role in the LPA process. Do not assume that a relative's reassurance or a previous assessment for a different decision replaces the required checks. Ask what information the practitioner needs and how any assessment will relate to the proposed LPA and its signing.
What if capacity changes from day to day?
Timing can matter where someone's ability to decide fluctuates. Explain any pattern to the practitioner, including difficulties caused by tiredness, distress or illness. The Mental Capacity Act approach recognises that a decision may sometimes be made at a better time. That calls for careful planning, not a rushed signature during a brief conversation.
Keep a factual note of appointments, explanations and any assessment obtained. Do not backdate documents or assume that starting a form proves the person had capacity when it was signed. If the person's condition changes while preparation is underway, tell the practitioner before proceeding.
What if the person cannot make an LPA?
An LPA cannot be created for someone by family agreement after they lack capacity to make it. First establish whether there is already a valid LPA or other relevant authority, and what decisions it covers. A missing document and a document that was never made are different problems.
Where no suitable authority exists, advice about the Court of Protection may be needed. The appropriate route depends on the decision; property and financial matters and health or welfare matters are not interchangeable. A welfare deputyship should not be assumed to be the automatic next step. Obtain specialist advice about the actual issue requiring a decision.
A sensible next step after diagnosis
Gather any existing LPA paperwork, identify what the person wants to discuss and arrange a properly supported conversation promptly. Ask about capacity concerns openly. The aim is to understand whether the person can make their own arrangement, rather than deciding the outcome from a diagnostic label.
H.A. Law Advisory provides non-reserved LPA preparation support. We can discuss preparation and identify questions that need independent professional or specialist advice. We cannot replace the donor's decision or promise that a particular assessment will establish capacity. This article is general information, not an individual capacity assessment.
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