Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
39 Essex Chambers, Mental Capacity Guidance Note: Carrying out and recording capacity assessments.
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
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Assessing multiple decisions in one capacity instruction
One instruction can cover several decisions, but the assessment must still treat each decision separately, because capacity is decision-specific under the Mental Capacity Act 2005. A person may have capacity to make a will but not to sell their house, or to grant a Lasting Power of Attorney but not to litigate. A well-structured multi-decision assessment identifies the relevant information for each decision, tests each in turn and reports separate conclusions with separate reasoning, usually within one visit and one document. This guide explains when combined instructions work well, how they are structured and where they go wrong.
One instruction, several decisions, separate analyses
Instructions frequently bundle decisions: capacity to make a will, grant an LPA and gift a property in a single visit; or residence, care and contact assessed together for the Court of Protection. Bundling is legitimate and often efficient, but the law's requirement does not relax: capacity is decision-specific, each decision carries its own relevant information and the assessment must run a separate analysis for each, however many share the appointment. The instruction that forgets this produces a report that blurs them, and blurred reports fail.
Why bundled instructions arise
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.
Different decisions, different tests and thresholds
Within one bundle the applicable tests can differ: the will engages Banks v Goodfellow, the LPA and the gift engage the statutory test with the gift's threshold scaled by Re Beaney proportionality, and litigation decisions engage the issue-specific approach of the case law. The report must apply the right test to each decision and say so, because a single blended analysis under one test invites the challenge that half the conclusions were reached under the wrong law.
Divergent outcomes are normal, not inconsistent
Assessing several decisions honestly means being ready for different answers: capacity for the LPA but not the complex gift, for residence but not finances, for the simple will but not the business restructuring. Divergence is not inconsistency; it is the decision-specific principle working, since the decisions carry different information at different depths. A report that finds capacity for everything or nothing across a varied bundle should prompt more suspicion than one whose conclusions differ decision by decision.
Structuring the assessment visit
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.
Keeping the evidence separate in the report
The report mirrors the discipline of the visit: a section per decision, each with its relevant information, the person's own responses, the functional analysis and its own conclusion with the causative link addressed. Shared material, the diagnosis, the background, the practicable steps common to all, is stated once and cross-referenced, but the analysis never merges, so any reader can extract the evidence for one decision without untangling it from the others.
When decisions should not share an instruction
Some combinations sit badly together. A decision needing urgent answer should not wait for a bundle still being scoped; a decision whose outcome shapes another, such as a statutory will application depending on testamentary capacity being absent, may need sequencing rather than bundling; and where one decision is contested and the others are not, the contested one may warrant enhanced treatment on its own timetable. The efficiency of bundling should never set the order of what the decisions themselves require.
Instructing a multi-decision assessment well
The instruction should list each decision expressly, identify the test and any transaction documents for each, state the priorities and timescales where they differ and confirm the context, family, litigation, court process, that each conclusion will serve. An assessor given the full list plans the visit, the information and the report around it; an assessor who discovers the third decision in the hallway delivers evidence for it that was never designed.
Key takeaway
Multiple decisions can share one instruction and one visit, but never one analysis: each decision keeps its own test, its own relevant information and its own conclusion, with divergent outcomes embraced as the decision-specific principle at work. List the decisions, plan the visit around the person and report them separately, and the bundle becomes efficiency without ever becoming blur.
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 Enhanced Mental Capacity Assessment?
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.
When is a formal assessment for Enhanced Mental Capacity Assessment useful?
Combined assessment is useful where several decisions arise together, commonly a will, a Lasting Power of Attorney and a property matter following a diagnosis. It saves cost and repeated visits, provided each decision still receives its own analysis and its own conclusion.
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.
Several decisions needing assessment?
Nellie Supports provides independent, decision-specific mental capacity assessments across England and Wales through a permanent employed team of registered professionals, with a same working day response to every enquiry and every report peer reviewed before delivery. Call 0333 987 5118 or visit the mental capacity assessment service page.