GUIDES
Making an LPA is a distinct decision from managing the affairs it covers. The donor must have capacity to execute the particular instrument and meet the creation and registration requirements.
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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Making an LPA is a distinct decision from managing the affairs it covers. The donor must have capacity to execute the particular instrument and meet the creation and registration requirements. The sections below explain the evidence, practical steps and limits of the assessment or process.
Capacity to grant a Lasting Power of Attorney means the donor can understand, retain, use or weigh the information relevant to making the LPA at the time it is executed. The relevant information includes what an LPA is and the authority it gives, who the attorneys are, the scope of the decisions covered, whether property and financial affairs or health and welfare, when the attorneys can act, the ability to revoke the LPA while capacity remains, and the risk that attorneys could misuse their powers. The bar is deliberately accessible: many people who need support day to day can still validly grant an LPA. This guide explains the test and how it is assessed.
Granting a lasting power of attorney is a decision to confer legal authority on another person, either over property and financial affairs or over health and welfare. The donor is not being asked to manage their finances or to make treatment decisions. They are being asked whether they understand what it means to hand that authority to someone else, which is a narrower and often more achievable decision. This distinction matters, because a person may lack capacity to manage complex financial affairs whilst retaining capacity to decide who should manage them on their behalf.
Explain the proposed attorneys, scope of powers, material instructions, timing, revocation and risk of misuse in a way the donor can use. Registration is needed before either LPA can operate. A health and welfare attorney may act only when the donor lacks capacity for the particular decision, while a property and financial affairs LPA may be used with the donor’s permission while capacity remains, subject to its terms.
The two instruments are separate decisions and should be assessed separately where both are proposed. A donor may understand the practical consequences of an attorney managing bank accounts and property whilst being unable to weigh what it means to hand over decisions about treatment, care and residence, or the reverse. An assessment which treats both instruments as a single decision invites challenge, because the relevant information for each is different and the donor's ability to weigh it may differ too.
The Mental Capacity Act 2005 test asks whether the donor can understand, retain, use or weigh the relevant information for this decision and communicate a choice, and, where they cannot, whether that inability is because of an impairment of, or disturbance in the functioning of, the mind or brain. The causative link is essential. A diagnosis of dementia or a learning disability explains why capacity is in doubt but does not answer the question, and a report which moves from diagnosis to conclusion without functional analysis of the LPA decision itself will not withstand scrutiny.
Support should fit the donor and instrument: accessible explanation, suitable timing and breaks, communication aids, and further contact where practicable and useful. A private discussion may help explore pressure, while independent support can be necessary. Record what was tried and its effect. Do not treat every listed measure or a second visit as compulsory regardless of the person’s circumstances.
The donor needs capacity to execute the instrument. Where presentation fluctuates, plan supportive timing, breaks and communication, and record when the assessment and signing occur. A progressive diagnosis alone does not show incapacity or create a mandatory private-report requirement. If the relevant ability is absent, seek legal advice about other arrangements rather than asking someone else to make the LPA for the donor.
The circumstances around an LPA deserve as much attention as the donor's cognition. Warning signs include a proposed attorney who arranges and attends every appointment and answers on the donor's behalf, a donor who cannot explain in their own words why this person was chosen, recent isolation from other family members, and an instrument which departs sharply from the donor's previously expressed intentions. Pressure does not itself establish incapacity, but it should be recorded, weighed and, where serious, acted upon.
A strong report should identify the instrument or instruments assessed, the relevant information for each, the practicable steps taken, the donor's responses in their own words, the functional analysis against each element of the test, any impairment identified and the causative link between the impairment and any inability found. Where the donor has capacity, the report should say so plainly, because a positive finding contemporaneous with execution is one of the most effective protections against a later challenge to the instrument.
Capacity to grant a lasting power of attorney is a distinct, decision-specific question, and it is frequently retained by donors who could no longer manage the underlying affairs themselves. The value of a formal assessment lies in tailoring the relevant information to the actual instrument, evidencing the support given and recording the donor's own reasoning, so that the instrument is protected rather than exposed when it matters most.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
Useful evidence will depend on the facts, but it commonly includes draft or registered LPA documents, OPG correspondence, solicitor notes, family background, medical records and information about any concerns regarding pressure, coercion or fluctuating capacity. The assessor should record which documents were reviewed and separate direct observations from information supplied by others.
A formal assessment is most useful where a diagnosis raises doubt, where family members might object to registration, where the donor is elderly and the LPA accompanies wider estate planning, or where a previous LPA or its revocation is in question. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
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