Reviewed by James Badcock
If your parent loses capacity (the ability to make decisions) without the right legal paperwork in place – known as Lasting Power of Attorney (LPA) – you and your family can be faced with a lengthy, costly and distressing mess to sort out.
One of the reasons older people procrastinate and get nervous about putting LPAs in place is due to misconceptions around capacity and fear of losing control.
Let us help clarify what capacity is, how LPAs work, the protections in place, and why having LPAs is so important.
What is mental capacity?
Capacity is about our ability to make and communicate decisions. Under the law, there is the presumption that we all have capacity unless it can be proven otherwise.
Capacity can be lost in different ways:
- Gradually – e.g., through conditions like dementia, Parkinson’s disease, or Alzheimer’s.
- Suddenly – e.g., after a stroke, brain injury, or sudden illness like a coma or acute mental health crisis.
Two key things to understand about capacity:
- It’s decision-specific – A person might be able to make some decisions but not others. For example, they may be able to decide what to eat for lunch but struggle to manage complex financial matters.
- It can fluctuate – Capacity isn’t always all or nothing. Some people may be able to make decisions on some days but not others. This is especially common with conditions like dementia or certain mental illnesses.
How do you know if someone has capacity?
Assessing someone’s capacity can be challenging, even for professionals.
Under the Mental Capacity Act 2005, a two-stage test is used:
- Is there an impairment or disturbance in the functioning of the person’s mind or brain?
- If so, does that impairment mean the person is unable to make a specific decision when they need to?
A person is considered unable to make a decision if they cannot do one or more of the following:
- Understand the relevant information
- Retain that information long enough to make a decision
- Weigh up the information to reach a decision
- Communicate their decision (by talking, using sign language, or other means)
What is an LPA?
A Lasting Power of Attorney is a legal document that allows you to give a person or people you trust (called your ‘attorney’ or ‘attorneys’) the authority to make decisions on your behalf, if you lose capacity or if you give them explicit permission.
It’s a bit like an insurance policy for your mind – something you will hopefully never need, but at least it’s there if something goes wrong.
There are two types of LPA – one for property and financial affairs, and one for health and welfare.
Property and Financial Affairs LPA
This type of LPA allows attorneys to handle a wide range of financial matters on your behalf.
Examples of how this type of LPA can be used:
- Paying household bills, mortgages, and taxes
- Managing bank accounts and pensions
- Handling property sales or purchases
- Overseeing investments
Health and Welfare LPA
This type of LPA allows attorneys to make decisions about:
- Daily routine, such as washing, dressing, and eating
- Medical care, including treatment options
- Living arrangements, such as whether residential care is needed
Registering LPAs
Once an LPA has been created, it must be signed by all parties, and registered with the Office of the Public Guardian before it can be used.
It’s generally recommended to register the LPA as soon as it is completed. Don’t wait until capacity is lost.
What can attorneys do and not do?
It’s important to be clear that, even with an LPA in place, you still retain control while you’re capable of making your own choices.
Attorneys can only act without your consent if you lack the capacity to make decisions yourself. Before making any decisions, your attorneys must always assess whether you can decide for yourself. The LPA doesn’t give them the right to over-rule your decisions if you still have capacity.
It’s also important to understand that the two types of LPA have different activation rules:
- A Property and Financial Affairs LPA can be used both while you still have capacity (with your consent) and after you lose capacity. For example, you might choose to let your attorney manage your finances temporarily while you are in hospital or recovering from illness.
- By contrast, a Health and Welfare LPA can only be used once you have lost capacity. Attorneys appointed under this type of LPA cannot make decisions about your health or welfare while you are still able to make those decisions yourself.
This distinction ensures that your autonomy over personal health and welfare decisions is fully respected unless you are unable to make those decisions.
How do you get a formal capacity assessment?
You can request a formal capacity assessment from a qualified professional, such as a GP, psychiatrist, social worker, or specialist mental capacity assessor.
During the assessment, the professional will:
- Explain the decision in question – They will outline what the person needs to decide on and provide any relevant information.
- Check understanding – The assessor will ask the individual to explain the information in their own words.
- Assess memory and reasoning – The person will be asked to retain the information long enough to consider it and weigh up different options.
- Confirm communication ability – The individual will need to express their decision, whether through speech, writing, or other forms of communication.
The assessment is decision-specific, meaning that even if someone lacks capacity for one decision (e.g., managing finances), they may still have capacity for others (e.g., choosing where to live).
Can LPAs be abused?
One of the most common concerns about setting up a Lasting Power of Attorney (LPA) is the fear that an attorney might misuse their powers – such as accessing finances inappropriately.
It’s a valid concern. However, LPAs were specifically introduced to replace the older Enduring Powers of Attorney (EPAs) precisely because they offer more legal safeguards.
That said, the risk isn’t entirely eliminated. Once an LPA is registered, attorneys can start making decisions without needing to show a capacity assessment to the Office of the Public Guardian. While this makes the process more practical when capacity is lost, it also means there’s a potential for misuse if the wrong person is given that power.
That’s why it’s crucial to understand the safeguards in place – and the steps you can take to protect yourself.
Protecting LPAs against abuse
Here are four key ways you can actively reduce the risk of LPA abuse:
1. Choose your attorney(s) carefully
Pick someone you trust completely to act in your best interests. You can appoint more than one attorney and choose whether they must act jointly (together) or jointly and severally (together or independently). Having more than one attorney can add an extra layer of accountability – but only if the individuals get along and communicate well.
2. Name people to be notified
When registering your LPA, you can nominate people to be notified before the LPA is officially registered. This gives them an opportunity to raise concerns if they suspect any coercion or wrongdoing.
3. Use a solicitor or legal professional
A solicitor can:
- Make sure your LPA is completed and signed correctly so it’s legally valid.
- Help you select appropriate attorneys and include clear instructions or restrictions.
- Store the LPA securely until it’s needed – ensuring it can only be released with your consent or with medical confirmation that you’ve lost capacity.
This not only protects you, but also avoids costly mistakes and delays that can occur if an LPA is rejected.
4. Contact the Office of the Public Guardian if you’re concerned
If you already have an LPA in place and are worried that your attorney may be misusing it, you – or someone on your behalf – can contact the Office of the Public Guardian to report your concerns. They monitor all registered LPAs and can step in to investigate any concerns or reports of abuse. If needed, the Court of Protection can remove an attorney who is not acting in your best interests.
The dangers of losing capacity without an LPA
Even with this small risk of abuse, the dangers of not having an LPA are usually far greater. If you lose capacity without an LPA, your loved ones will have no automatic authority to manage your affairs and it will be too late to set up an LPA. Instead, they would need to apply for a deputyship order through the Court of Protection.
This process:
- Is significantly more expensive than setting up an LPA
- Can take several months, leaving finances and care decisions in limbo
- Gives the court, rather than you, control over who is appointed as deputy
- Requires ongoing court supervision and reporting that is time-consuming and expensive
By contrast, having an LPA in place ensures that you retain control over who acts on your behalf and spares your family unnecessary stress and bureaucracy.
In summary
Many people delay setting up LPAs, either because they are unaware of their importance or due to misconceptions about how they work. However, when illness or injury strikes, and decisions need to be made fast, having LPAs in place can be the difference between calm and chaos.
Think of an LPA as a form of protection, not a loss of control. It ensures that if something unexpected happens, someone you trust can step in to make decisions in your best interests.
While there is always a small risk of abuse, there are strong legal safeguards in place – and by choosing the right attorney, adding clear instructions, and seeking professional advice, you can significantly reduce that risk.
Common questions
- Can my parent make an LPA if they’ve already been diagnosed with dementia?
Yes, a diagnosis of dementia doesn’t automatically mean your parent can’t make an LPA. What matters is whether they still have mental capacity to understand what an LPA is, what powers they are giving to someone, and the implications of that decision.
Many people in the early stages of dementia are still perfectly capable of making an LPA. However, time is crucial. As the condition progresses, capacity may decline, and if it’s lost, it will no longer be possible to make an LPA.
- How long does it take to register an LPA?
After the LPA has been completed and signed by all parties, it must be registered with the Office of the Public Guardian to become legally valid. This process typically takes around 8 to 12 weeks. However, it can take longer if there are errors in the application. This registration process is essential – the LPA is not legally valid until it’s been registered.
- What if my parent refuses to set up an LPA?
It’s not uncommon for older people to resist setting up an LPA. They may feel like it means giving up control or admitting vulnerability. They may also worry about who to appoint as their attorney(s), for fear of upsetting people. In cases like this, it’s helpful to get a solicitor involved to address any concerns and provide the added reassurance that the LPA will not be used or released without your parent’s consent or a formal capacity assessment.
Disclaimer:The information provided in this article is for informational purposes only and is not intended as legal advice. Laws and regulations regarding Lasting Powers of Attorney in the United Kingdom may vary over time and across jurisdictions. It is recommended that readers consult with a qualified legal professional and check the official government website to obtain up-to-date advice tailored to their specific situation.
