# Borderline or Fluctuating LPA Capacity | Nellie Supports Source: https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa Canonical: https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Borderline or fluctuating capacity when making an LPA 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 and Publication Author: Nellie Supports Ltd Publication Date: 15/05/2026 ​ ## Citation GOV.UK, Make, register or end a lasting power of attorney. Available at: [https://www.gov.uk/power-of-attorney](https://www.gov.uk/power-of-attorney) ## Copyright Copyright © 2026 Nellie Supports Ltd. All rights reserved. ​ This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd. ​ This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms. ## Abstract 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. ## What is on this page - [Contact](https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa) - [Overview](https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa) - [Related Pages](https://www.nelliesupports.com/guides/borderline-or-fluctuating-capacity-when-making-an-lpa) 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. ## What “borderline” should prompt “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 threshold the donor must reach 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. ## Fluctuation and the time-specific principle 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. ## Assessing across more than one occasion 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. ## Support before a conclusion 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. ## Planning where a condition may change 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. ## Documenting the borderline conclusion 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. ## When the answer is not yet, or no 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. ## Key takeaway 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. ## Frequently asked questions ### Does a diagnosis automatically mean someone lacks capacity? 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. ### What evidence is useful for Mental Capacity Assessment to Grant Lasting Power of Attorney? 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. ### When is a formal assessment for Mental Capacity Assessment to Grant Lasting Power of Attorney useful? 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. ## Related mental capacity assessment pages The related guides below provide further explanation of the decisions, evidence and legal processes discussed here. ### Mental Capacity Assessment to Grant Lasting Power of Attorney ### LPA capacity assessments for solicitors and families ### What does an LPA certificate provider do? ### Read guide ## Practical next steps 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. ## Primary sources and official guidance [Mental Capacity Act 2005](https://www.legislation.gov.uk/ukpga/2005/9/contents) [Mental Capacity Act Code of Practice](https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice) ## Related information - [Mental Capacity Assessment to Revoke a Lasting Power of Attorney](https://www.nelliesupports.com/lasting-power-of-attorney-services/revoke-lpa) - [NHS Continuing Healthcare Support](https://www.nelliesupports.com/services/continuing-healthcare) - [CHC Appeal Application: Drafting and Submission](https://www.nelliesupports.com/services/continuing-healthcare/chc-appeal-application) --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ