GUIDES
A conveyancing capacity assessment should address the actual sale, purchase or transfer and the client’s ability to give the relevant instructions. Genuine doubt calls for support and proportionate enquiry; a specialist report is appropriate where the question cannot otherwise be resolved.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
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A conveyancing capacity assessment should address the actual sale, purchase or transfer and the client’s ability to give the relevant instructions. Genuine doubt calls for support and proportionate enquiry; a specialist report is appropriate where the question cannot otherwise be resolved. This guide covers the relevant evidence, support, process and limits in England and Wales.
A conveyancing capacity assessment should address the actual sale, purchase or transfer and the client’s ability to give the relevant instructions. Genuine doubt calls for support and proportionate enquiry; a specialist report is appropriate where the question cannot otherwise be resolved. Capacity evidence should identify the transaction and material time. The effect of incapacity on a completed contract or transfer is a separate legal question and is not settled by a general statement that every transaction is voidable.
Capacity concerns can arise where instructions are unclear, the client cannot engage with an accessible explanation or someone else appears to control the decision. Age, moving into care or involving a relative is not proof of incapacity. Explore the concern before committing the client to a transaction.
Conveyancers need to consider whether the client can give the instructions required for the matter. They can make and record appropriate capacity enquiries, give support and seek specialist evidence where the concern exceeds their expertise. The response should be proportionate; diagnosis or age alone does not require an independent report.
Address the proposed transaction, the property, price or value, purpose, material costs and foreseeable consequences, including accommodation if the property is the client’s home. Adapt the explanation and record the client’s own account. Offer a private conversation and appropriate communication support, managing any interest held by those attending.
For an MCA question, assess the person’s ability to understand, retain, use or weigh relevant information and communicate, with practicable support, then explain whether any inability is caused by impairment or disturbance. Relevant information depends on this transaction. Re Beaney concerns gifts and should not be presented as a universal legal test for every conveyance.
Agree the appointment and report timetable in light of the documents, support needs and deadline. Evidence should relate to the relevant instructions and transaction stage. If the terms, condition or circumstances materially change, consider whether further enquiry is needed; there is no universal expiry period for an assessment.
A finding of incapacity does not end the transaction; it changes who lawfully conducts it. A property and financial affairs attorney can act where a registered LPA covers the decision, a deputy can act within the terms of the order, and where neither exists, or the transaction falls outside existing authority, an application to the Court of Protection is required, for which the capacity report itself becomes core evidence. The earlier the position is established, the more orderly the route through.
Check the title, beneficial ownership and trustee arrangements before exchange. Joint owners and trustees may have distinct roles, and an attorney or deputy cannot assume they may sign for every owner or exercise every trustee function. Obtain advice about any additional trustee or court authority required.
A useful report identifies the transaction, relevant time and information, evidence, support, findings and reasoning, including any causal link and limitations. It assists the conveyancer’s judgement but does not guarantee lender or Land Registry acceptance, validate title or prevent challenge.
Resolve genuine capacity doubt through supported, decision-specific enquiry and proportionate evidence. Check the authority and title route separately if the client cannot make the decision, and seek legal advice on any effect upon the transaction.
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 transaction documents, the reason for the sale or transfer, anything on the file that triggered the doubt and, with consent, medical records. The assessor needs the conveyancer's concern stated plainly, because the report should answer the file's actual question.
Seek further evidence where genuine doubt remains after appropriate support and enquiry, especially before a significant transaction. A diagnosis or third-party involvement is a reason to understand the circumstances, not an automatic finding of incapacity or a fixed requirement for paid assessment.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Give the conveyancer the reasons for concern and any support that helps the client. Agree the decision and transaction documents before an assessment, and obtain legal advice about authority, title or trustee issues before proceeding.
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