When Is It Too Late to Make an LPA?
Once someone has permanently lost mental capacity, they can no longer create an LPA — making early action essential.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
It is too late to make an LPA once the donor has permanently lost the mental capacity to understand the document — and no one else can create it on their behalf. Under the Mental Capacity Act 2005, the donor must be able to understand what an LPA is and the powers they are granting at the time of signing. A dementia diagnosis alone does not mean it is too late — many people in the early stages still have sufficient capacity — but the window closes as the condition progresses. This guide explains what counts as capacity, how to recognise borderline cases, and what the alternatives are if it is already too late.
At a glance
- It is too late to make an LPA once the donor has permanently lost the mental capacity to understand the document
- A dementia diagnosis does not automatically mean it is too late — many people in the early stages still have sufficient capacity
- If capacity is lost without an LPA, the only option is a Court of Protection deputyship, which costs over £1,000 and takes months
- No one can create an LPA on behalf of another person who has lost capacity
The Fundamental Rule: Capacity Is Required
Under the Mental Capacity Act 2005, a person must have mental capacity to create a valid LPA. This means they must be able to understand:
- What an LPA is and what it does
- The powers they are granting to their chosen attorneys
- That those powers could be used to make decisions on their behalf if they lose capacity
- That they can set conditions or restrictions on the attorney's powers
- That they can revoke the LPA at any time while they still have capacity
If the donor cannot understand these things at the time of signing, the LPA is not valid. It does not matter how much the family wants or needs the LPA to be in place — without capacity, it simply cannot be done.
Key point: The certificate provider who signs the LPA must confirm that, in their opinion, the donor understands the LPA and is not being pressured into making it. If there is any doubt about capacity, the certificate provider should refuse to sign.
Common Situations Where It May Be Too Late
There are several circumstances in which it is likely to be too late to create an LPA:
- Advanced dementia — in the later stages of Alzheimer's disease or other forms of dementia, a person will typically lack the capacity to understand what an LPA involves
- Severe brain injury — a traumatic brain injury, stroke, or brain haemorrhage can cause sudden and permanent loss of capacity
- Advanced neurological conditions — conditions such as Parkinson's disease, motor neurone disease, or multiple sclerosis can affect cognitive function in their later stages
- Severe mental illness — some psychiatric conditions can affect a person's ability to make specific decisions, although this is assessed on a case-by-case basis
- Unconsciousness or coma — a person who is unconscious cannot sign an LPA
Can Someone with Early Dementia Still Make an LPA?
Capacity is not always black and white. The Mental Capacity Act sets out several important principles that apply in borderline cases:
- Presumption of capacity — every adult is presumed to have capacity unless it is established otherwise. A diagnosis of dementia, for example, does not automatically mean someone lacks capacity
- All practicable steps — before concluding that someone lacks capacity, all practicable steps must be taken to help them understand. This might include explaining things in simple language, using visual aids, choosing a time of day when they are most alert, or ensuring they are comfortable and relaxed
- Decision-specific — capacity is assessed in relation to the specific decision being made. A person might lack capacity to manage complex financial investments but still have capacity to understand and sign an LPA
- Fluctuating capacity — some people have good days and bad days. If someone has fluctuating capacity, it may be possible to create an LPA during a lucid period, provided they genuinely understand what they are signing at that time
In borderline cases, you should obtain a formal capacity assessment from a medical professional — usually the person's GP or a consultant psychiatrist. This assessment provides evidence that the donor had capacity at the time the LPA was signed, which can be invaluable if the LPA is later challenged.
Key point: If you believe your parent or relative may be in the early stages of cognitive decline, do not delay. The sooner you act, the more likely it is that they will still have sufficient capacity to create a valid LPA.
What Happens If It Is Already Too Late?
If a person has already lost mental capacity and does not have an LPA in place, the family must apply to the Court of Protection for a deputyship order. This is a court-appointed arrangement where the court gives someone (usually a family member) the legal authority to make decisions on behalf of the person who lacks capacity.
Deputyship is significantly more onerous than an LPA in several ways:
- Higher costs — the application fee for deputyship is £371, plus an assessment fee. If you use a solicitor to help with the application, legal fees can run into thousands of pounds. There are also ongoing annual supervision fees payable to the OPG
- Longer process — a deputyship application typically takes several months to process. During this time, no one has legal authority to manage the person's affairs, which can cause serious practical problems
- More supervision — deputies are subject to closer supervision by the OPG than attorneys under an LPA. They must submit annual reports and may be visited by Court of Protection visitors
- Less flexibility — the court may impose restrictions on what the deputy can do, requiring court approval for certain decisions (such as selling property)
The Practical Impact on Families
The consequences of not having an LPA can be severe and immediate:
- Banks and building societies will freeze the person's accounts, preventing anyone from accessing money to pay bills, care fees, or household expenses
- The person's pension or benefits may continue to be paid into an account that no one can access
- Care homes may refuse to accept the person without a clear arrangement for payment
- Doctors and hospitals will make medical decisions without meaningful family input
- Property cannot be sold to fund care without a court order
These situations cause enormous stress for families at an already difficult time. They are almost entirely avoidable by putting an LPA in place while the person still has capacity.
The Message Is Clear: Act Now
The best time to create an LPA is before you need one. You do not need to be elderly or unwell — anyone over the age of 18 can make an LPA. Accidents, strokes, and sudden illnesses can affect people of any age. The registration process with the OPG currently takes several weeks, so even once an LPA is signed, there is a waiting period before it can be used.
If you are concerned about an elderly parent or relative, have the conversation sooner rather than later. If you are an adult without an LPA yourself, consider making one now while you are able to do so. It costs relatively little, takes a modest amount of time, and provides invaluable protection for you and your family.
Don't wait until it's too late. Our guided LPA service makes it easy to protect your family, starting from just £92 to register. See pricing.
Key Takeaways
- Capacity is the legal requirement — the Mental Capacity Act 2005 requires the donor to understand what an LPA is and the powers it grants at the time of signing
- Early-stage dementia may still allow an LPA — capacity is assessed at the time of the decision, and a GP assessment can provide crucial evidence
- Fluctuating capacity can be used — if someone has good days and bad days, an LPA may be created during a lucid period when they genuinely understand the document
- Deputyship is costly and slow — the court application fee is £371, solicitor fees can reach thousands, and the process takes several months with ongoing annual supervision
- Act now to avoid the consequences — frozen bank accounts, unpaid bills, and loss of family input on medical decisions are common when no LPA is in place
Answers to Questions We Get Asked
Can someone with dementia still make an LPA?
It depends on the stage. In the early stages of dementia, many people still have sufficient capacity to create a valid LPA. A medical capacity assessment is strongly recommended to provide evidence that the donor understood the document at the time of signing.
What is the alternative if it is already too late to make an LPA?
The only alternative is to apply to the Court of Protection for a deputyship order. This costs significantly more than an LPA, takes several months, and the court decides who is appointed rather than the individual.
Can a family member create an LPA on behalf of someone who has lost capacity?
No. An LPA can only be created by the person themselves (the donor), and they must have mental capacity at the time. No one else can create an LPA on their behalf once capacity is lost.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Relevant government resources
The Best Time to Act Is Now
Once mental capacity is lost, it’s too late to create an LPA. Don’t wait.
