Key Facts
- Whether someone with dementia can revoke a Lasting Power of Attorney depends entirely on their mental capacity at the time they wish to revoke it.
- The capacity required to revoke a Lasting Power of Attorney is the same capacity needed to create one in the first place.
- Registered Lasting Powers of Attorney can be revoked just as easily as unregistered ones, but the process requires notifying the OPG.
- A Lasting Power of Attorney cannot be partially changed or amended once it has been created.
- If someone without capacity attempts to revoke their Lasting Power of Attorney, the revocation is not valid.
A Lasting Power of Attorney provides essential protection by allowing someone to appoint trusted individuals to make decisions on their behalf if they lose mental capacity. However, people often worry about what happens if their circumstances change or they develop conditions like dementia. Can someone with dementia revoke an LPA? Can an LPA be cancelled in the UK once it has been registered? These are crucial questions for anyone considering setting up a Lasting Power of Attorney or supporting someone with early dementia.
The answer depends on whether the person creating the LPA still has mental capacity. Revoking an LPA in the UK is possible, but only if the person retains sufficient capacity to understand what they are doing. Once dementia progresses and capacity is lost, revoking a Lasting Power of Attorney becomes significantly more complicated. This article explores the rules around LPA cancellation, the capacity requirements, and what protections exist for vulnerable individuals.
Can Someone With Dementia Revoke a Lasting Power of Attorney?
Whether someone with dementia can revoke a Lasting Power of Attorney depends entirely on their mental capacity at the time they wish to revoke it. The law does not prevent people with a dementia diagnosis from revoking their LPA, but they must have the capacity to understand the decision they are making. Early stage dementia does not automatically remove this right.
If the person retains sufficient capacity, they can revoke their Lasting Power of Attorney at any point, regardless of whether it has been registered with the Office of the Public Guardian (OPG). The process is straightforward in these circumstances: they simply notify the attorney and the OPG in writing. However, if dementia has progressed to the point where the person lacks capacity to understand the consequences of revocation, the situation becomes more complex.
For people in the early stages of dementia who may still create or revoke an LPA, it is often wise to discuss any concerns about the document with family members or advisors while capacity remains clear. This allows for proper planning if changes are needed.
What Capacity Is Needed to Revoke a Lasting Power of Attorney?
The capacity required to revoke a Lasting Power of Attorney is the same capacity needed to create one in the first place. The person must understand the nature and effect of their decision, retain that information long enough to make the decision, and communicate their choice clearly.
Specifically, they must understand what a Lasting Power of Attorney is, recognise that they are giving away decision making powers, know who they have appointed, and appreciate the consequences of revocation. They must also weigh the information in order to reach a decision. A diagnosis of dementia alone does not mean someone lacks this capacity. Many people in the early stages of dementia retain sufficient understanding to make this decision.
Medical evidence is important here. A doctor or healthcare professional can assess capacity, and their opinion will carry significant weight if the revocation is later challenged. If there is any doubt, a formal capacity assessment by a medical professional is advisable before attempting to revoke a Lasting Power of Attorney. For more information on how capacity is assessed, see the guide to mental capacity assessment for an LPA.
How to Revoke a Lasting Power of Attorney That Has Been Registered
Registered Lasting Powers of Attorney can be revoked just as easily as unregistered ones, but the process requires notifying the OPG. The person with capacity must provide written notice of revocation directly to the Office of the Public Guardian, not just to their attorney.
The formal process involves completing a revocation notice and sending it to the OPG. Once received, the OPG will remove the registration and issue a revocation certificate. The person should also notify their attorney in writing. Until the OPG receives formal notice, the attorney can continue to act under the Lasting Power of Attorney, so prompt notification is essential.
The cost of revocation is minimal, and the process is typically completed within weeks. However, any attorney who has already acted on the LPA should be informed immediately to prevent further actions being taken that may not reflect the donor’s wishes.
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Can a Lasting Power of Attorney Be Changed Rather Than Revoked?
A Lasting Power of Attorney cannot be partially changed or amended once it has been created. The law does not allow modifications to a registered LPA. If someone wants to change who their attorneys are, alter their powers, or adjust the conditions attached to the LPA, the only option is complete revocation and creation of a new document.
Once a Lasting Power of Attorney is revoked, a new one can be created. However, if the person creating the new LPA has lost capacity since the first was made, they will not be able to create a replacement. This is why early action is important, particularly for people with early stage dementia. If circumstances change, it is better to revoke and create a new Lasting Power of Attorney while capacity still exists.
Sometimes, people choose to create a new LPA alongside the existing one, naming different attorneys or giving different powers. This second LPA can then be registered separately. However, if the original LPA needs to be cancelled, formal revocation is still required to prevent the original attorneys from continuing to act.
What Happens If Someone Tries to Revoke an LPA Without Capacity?
If someone without capacity attempts to revoke their Lasting Power of Attorney, the revocation is not valid. The OPG will not accept a revocation notice if there is evidence that the person lacked capacity when they made the decision. This protection prevents vulnerable people from being manipulated into revoking protections they still need.
However, disputes can arise. If family members or the attorney believe the person is trying to revoke a Lasting Power of Attorney due to undue influence or because they lack capacity, the matter may need to be resolved through the Court of Protection. The court can determine whether the person had capacity at the time of revocation and whether the revocation should be upheld or set aside.
This situation highlights the importance of capacity assessment. If a person is suspected of lacking capacity, it is better to obtain medical evidence and potentially involve the Court of Protection than to allow a potentially invalid revocation to stand unchallenged.
How Third Parties Can Challenge a Lasting Power of Attorney
Third parties, including family members, can challenge the validity of a Lasting Power of Attorney or raise concerns about how it is being used. The most common grounds for challenge include lack of capacity when the LPA was created, undue influence, or fraud.
A challenge can be made to the OPG even before the Lasting Power of Attorney is registered, or to the Court of Protection if it has already been registered. The person raising the concern must provide evidence supporting their claim. For example, if they believe the donor was not mentally capable when they signed the LPA, they would need medical or other factual evidence to support this.
If concerns arise after a Lasting Power of Attorney has been registered, the Court of Protection has the power to cancel it. Attorneys can also be removed if they are found to be acting in breach of their duties, such as acting outside the scope of their powers or failing to act in the donor’s best interests.
What Is Safeguards That Protect the Donor?
Multiple safeguards exist to protect people who create Lasting Powers of Attorney, particularly those with concerns about dementia or reduced capacity. The OPG registers LPAs and can investigate complaints about how attorneys are acting. Attorneys are legally required to act in the donor’s best interests and have a fiduciary duty to do so.
Before a Lasting Power of Attorney is registered, the person who created it has the right to cancel it. After registration, the donor or anyone else can apply to the Court of Protection to have it cancelled if they believe it was created without proper capacity or through undue influence. The attorney must also comply with a Code of Practice setting out their obligations.
Additionally, some Lasting Powers of Attorney include restrictions or conditions that limit what attorneys can do. For someone concerned about the future, understanding what happens if capacity is lost without an LPA makes the case for proper planning. Regular review of a Lasting Power of Attorney is also sensible, particularly if circumstances or relationships change.
The OPG’s records are now searchable, which is useful in situations, not uncommon, where someone has paid for a document and believed it to be registered when in fact it never was. At Elwyn & Mabel, we ensure every document is properly registered and provides confirmation to the client once registration is complete.
Please note: Lasting Powers of Attorney apply in England and Wales only. Different rules apply in Scotland and Northern Ireland.
Frequently Asked Questions
Can dementia progression prevent someone from revoking their Lasting Power of Attorney?
Yes. If dementia has progressed to the point where the person lacks capacity to understand the nature and consequences of revocation, they cannot validly revoke the LPA. However, if they retain capacity, dementia does not prevent revocation, regardless of their diagnosis.
Is a revoked Lasting Power of Attorney still legally binding?
No. Once the OPG receives and processes a valid revocation notice, the Lasting Power of Attorney ceases to be legally binding. The attorney has no further authority to act. Any actions taken after revocation is effective are not covered by the LPA.
Can a family member revoke someone else’s Lasting Power of Attorney if that person lacks capacity?
A family member cannot unilaterally revoke another person’s LPA. However, they can apply to the Court of Protection for an order to cancel it if they believe it was created without capacity or through undue influence, or if they believe the attorney is misusing their powers.
How long does it take for an LPA revocation to become effective?
Once the OPG receives the revocation notice, processing typically takes two to four weeks. The Lasting Power of Attorney remains technically valid until the OPG notifies the attorney and issues a revocation certificate.
What should someone do if they want to change their attorney?
The current Lasting Power of Attorney must be revoked in full, and a new LPA created naming the new attorney. This requires the donor to have capacity at the time the new LPA is created. If capacity has been lost, revocation and replacement is no longer possible.
TL;DR: Can Someone With Dementia Change Their Lasting Power of Attorney?
Someone with early dementia can revoke their Lasting Power of Attorney if they retain sufficient mental capacity to understand the decision. Once capacity is lost, revocation becomes legally impossible, and the LPA continues to bind the donor.
- Capacity to revoke a Lasting Power of Attorney requires understanding its nature, effect, and consequences.
- Early stage dementia does not automatically prevent someone from revoking a Lasting Power of Attorney.
- Registered Lasting Powers of Attorney are revoked by formal notice to the Office of the Public Guardian.
- Lasting Powers of Attorney cannot be partially changed; complete revocation is required if modifications are needed.
- The Court of Protection can cancel a Lasting Power of Attorney if it was created without capacity or through undue influence.
More From Elwyn & Mabel
Creating a Lasting Power of Attorney is one of the most important steps in planning for the future. Download the free Lasting Power of Attorney Checklist for a step by step guide to getting your LPA in place, explained in plain language.
For personalised guidance on creating a Lasting Power of Attorney or any aspect of estate planning, book a free consultation with Elwyn & Mabel. The team will answer questions, review individual circumstances, and help put the right plan in place.