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
Copywright
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
This guide explains what capacity to grant a lasting power of attorney means for Mental Capacity Assessment to Grant Lasting Power of Attorney in England and Wales. It gives a decision-specific overview of relevant information, evidence, risk factors, report quality and when a formal assessment may be needed.
What is capacity to grant a lasting power of attorney?
Capacity to grant a Lasting Power of Attorney means the donor can understand, retain, use and 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.
What granting a lasting power of attorney actually involves
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.
The relevant information for granting an LPA
The donor should be able to understand who the proposed attorneys are, the scope of the authority being given, that a property and financial affairs instrument can be used whilst the donor still has capacity if the donor permits it, that a health and welfare instrument only operates once capacity is lost, that the instrument can be revoked whilst the donor retains capacity, and that there is a risk the attorney could misuse the authority. The information should be presented in ordinary language and tested through the donor's own explanation, not through yes or no answers.
Property and affairs versus health and welfare instruments
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.
Applying the statutory test to the LPA decision
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.
Supporting the donor to make the decision
All practicable steps must be taken before a donor is treated as unable to decide. In LPA assessments this means seeing the donor without the proposed attorneys present, choosing a time of day when the donor is at their best, breaking the instrument into its component parts rather than presenting it whole, using plain language and returning on a second occasion where presentation fluctuates. These steps should be recorded, because the support offered is part of the evidence that the conclusion is sound.
Timing, fluctuating capacity and progressive conditions
Capacity is assessed at the time the instrument is executed, which makes timing critical where a condition is progressive. A donor in the early stages of dementia may well retain capacity to grant an LPA, and doing so whilst capacity remains is often exactly the right planning step. However, where presentation fluctuates, the assessment should be arranged for the donor's better periods and the report should record why the chosen time gives a reliable picture. Delay is the enemy in progressive conditions, and families who wait often lose the option altogether.
Pressure, undue influence and the choice of attorney
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.
What an LPA capacity report should contain
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.
Key takeaway
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.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Mental Capacity Assessment to Grant Lasting Power of Attorney?
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.
When is a formal assessment for Mental Capacity Assessment to Grant Lasting Power of Attorney useful?
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.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Checking capacity to grant an LPA?
Nellie Supports completes LPA donor capacity assessments across England and Wales, with certificate provider services available, a same working day response to every enquiry and every report peer reviewed before delivery. Call 0333 987 5118 or visit the LPA capacity assessment service page.