GUIDES
A person with fluctuating abilities may still make an LPA if they have capacity for that decision when they execute it. Give practicable support, choose a suitable time and distinguish a capacity assessment from the certificate provider’s separate role.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
GOV.UK, Make, register or end a lasting power of attorney. Available at: https://www.gov.uk/power-of-attorney
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A person with fluctuating abilities may still make an LPA if they have capacity for that decision when they execute it. Give practicable support, choose a suitable time and distinguish a capacity assessment from the certificate provider’s separate role. This guide covers the relevant evidence, support, process and limits in England and Wales.
A person with fluctuating abilities may still make an LPA if they have capacity for that decision when they execute it. Give practicable support, choose a suitable time and distinguish a capacity assessment from the certificate provider’s separate role. Record what the donor understood and decided at the relevant time, any variation in abilities and the support that helped. A professional report can assist where there is doubt, but cannot guarantee registration or validity.
“Borderline” describes uncertainty in the evidence, not a separate legal category. Identify what the donor finds difficult, whether it concerns the relevant information and what support may help. The assessment should resolve the particular question as far as the evidence allows, without assuming either ability or inability.
The donor needs capacity to make the particular LPA, including its purpose, the authority given to the chosen attorneys and the relevant consequences. Apply the MCA functional abilities with support and explain any inability caused by impairment. Do not assume that making an LPA is always simpler than managing finances or care; the actual arrangements determine the information.
Capacity is assessed at the time the decision is made, and the law accommodates fluctuation: a donor who can meet the test during their better periods can validly execute an LPA in one, even where other times of day or week would tell a different story. The practical consequences follow directly: identify the donor's better times through family and carers, arrange assessment and execution within them and record why the chosen moment gives a fair picture of the donor at their best.
Further meetings may help understand a changing presentation or provide time for support. They are not a test of remembering information for days or weeks: section 3 permits short retention if it is enough to make the decision. Explain capacity at the relevant time and why further assessment would or would not assist.
The Act requires all practicable steps before concluding incapacity, and at the borderline those steps frequently decide the outcome: the instrument explained one element at a time, plain-language summaries left between visits, familiar wording for unfamiliar concepts, the discussion held where the donor is comfortable and unhurried. A donor who fails a dense solicitor's explanation may demonstrate solid understanding of the same instrument presented in stages, and the report must show the staging was offered.
A progressive condition is a reason to discuss planning and support in good time. Its course and the person’s abilities vary, so do not assume a fixed closing window or press the donor to sign. Consider the proposed LPA and assess capacity where genuinely in doubt.
A borderline finding of capacity should be written expecting challenge: the donor's verbatim explanations of the instrument, the practicable steps and their effect, the timing choices and their justification, consistency across visits and an honest account of the difficulties observed alongside the abilities demonstrated. A report that concedes the effort whilst evidencing the understanding is far stronger than one that presents a struggling donor as untroubled, because the second collapses at the first contrary witness.
If the donor cannot make the LPA now, identify whether recovery, different timing or further support could change that. If they cannot make it, an LPA cannot be created on their behalf. Seek legal advice about existing powers, one-off court decisions or deputyship where appropriate; a health and welfare deputy is not an automatic substitute.
Assess this LPA at the relevant time with all practicable support. Explain the evidence, uncertainty and fluctuation, and coordinate any assessment with the donor’s unpressured decision and the separate execution requirements.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
Beyond the draft LPA forms and medical records, evidence about the pattern of fluctuation matters: better and worse times of day, medication effects and recent examples of clear decision-making. The assessment is then scheduled for the window when the donor is at their best, and the report records why that timing was right.
A specialist assessment may help where there is genuine doubt or conflicting evidence about the donor’s abilities. It supplements the evidence but does not replace the certificate provider, cure defective execution or prevent a later challenge.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Coordinate the proposed LPA, certificate provider and any assessment around the donor’s supported decision-making. If capacity is temporarily affected, consider whether the decision can wait; seek legal advice on alternatives if the donor cannot make the LPA.
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