GUIDES
One instruction can cover several capacity questions, but each decision needs its own relevant information, legal test, reasoning and conclusion. A combined appointment is appropriate only if it gives the person enough time and support for every question.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
39 Essex Chambers, Mental Capacity Guidance Note: Carrying out and recording capacity assessments.
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One instruction can cover several capacity questions, but each decision needs its own relevant information, legal test, reasoning and conclusion. A combined appointment is appropriate only if it gives the person enough time and support for every question. This guide covers the relevant evidence, support, process and limits in England and Wales.
One instruction can cover several capacity questions, but each decision needs its own relevant information, legal test, reasoning and conclusion. A combined appointment is appropriate only if it gives the person enough time and support for every question. Shared background can be recorded once, but the report should distinguish the evidence and reasoning for each conclusion. The legal test for a will is different from the MCA test used for many other decisions.
A combined instruction may concern a will, an LPA and a gift, or residence, care and a property sale. List the decisions separately and identify the relevant time and information for each. Shared paperwork or one appointment does not make one conclusion sufficient for the whole instruction.
The bundle usually reflects real life. A person putting their affairs in order wants the will, the LPA and the gift addressed whilst capacity remains; a deputyship application needs finances, property and sometimes welfare answered together; litigation needs conduct of proceedings and management of any award considered side by side. Assessing them in one instruction spares the person repeated visits and catches the decisions at the same moment in time, which itself has evidential value when the decisions are later examined.
Confirm the applicable test for each question with the instructing solicitor where necessary. Testamentary capacity uses Banks v Goodfellow; an MCA assessment applies sections 1–3 to the particular matter. Gifts and litigation may require attention to relevant common-law authorities and the proceedings involved. Do not combine these into a single general test.
Different outcomes can be appropriate because the decisions and relevant information differ. Equally, a supported assessment may find capacity for all the decisions, or lack of capacity for each. The quality lies in the separate reasoning, rather than whether the results match.
In the room, the decisions are taken one at a time, each with its own relevant information presented and tested, with breaks between them and the sequence planned around the person's stamina, hardest decisions at their best time. Fatigue is the practical enemy of bundled assessments, and where the bundle outruns the person's day, a second visit serves the evidence better than a rushed afternoon, both because the person performs fairly and because the report can show they did.
Use a separate section for each decision, with its relevant information, support, evidence, applicable test and conclusion. Shared background can be cross-referenced without merging the analyses. Explain any causal link required by the particular legal framework.
Some decisions need separate timing or specialist expertise. An urgent matter should not wait for unrelated work, and an outcome that affects the available options for another decision may require sequencing. Consider fatigue, fluctuation, conflicts and whether the combined scope remains manageable.
List the decisions, relevant dates, documents, priorities and intended use of each opinion. Disclose material uncertainty and agree whether the assessor has the expertise and time to address the whole instruction.
A combined instruction can work where it fits the person and the decisions. Keep each legal question and conclusion distinct and plan enough time, support and evidence for all of them.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
The instruction should list each decision precisely and enclose the documents relevant to each: the draft will for testamentary capacity, the LPA forms for donor capacity, the property details for a sale. The assessor then plans one session covering all the decisions, with the person's stamina and best time of day in mind.
Combined work can reduce repeated explanations where decisions arise together. Agree the scope, fee and number of meetings first; do not assume one visit will suffice or that combining decisions will always cost less.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
List every proposed decision and its priority. Agree whether one meeting is realistic, which documents each question requires and how separate conclusions will be reported. More than one appointment may be needed.
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