GUIDES
A dementia diagnosis does not establish lack of capacity. Assess the particular decision at the relevant time, adapt communication and timing, and explain any inability and its connection to the impairment.
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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A dementia diagnosis does not establish lack of capacity. Assess the particular decision at the relevant time, adapt communication and timing, and explain any inability and its connection to the impairment. This guide covers the relevant evidence, support, process and limits in England and Wales.
A dementia diagnosis does not establish lack of capacity. Assess the particular decision at the relevant time, adapt communication and timing, and explain any inability and its connection to the impairment.
A dementia diagnosis does not establish lack of capacity. Assess the particular decision at the relevant time, adapt communication and timing, and explain any inability and its connection to the impairment. The assessment should identify what the person can do with support and keep capacity separate from legal authority, best interests or other professional decisions.
Identify whether the decision concerns an LPA, treatment, money, residence or another actual matter. A dementia assessment or memory score is not a general capacity verdict. Making a will requires Banks v Goodfellow rather than the MCA test alone.
For an MCA matter, presume capacity, take all practicable steps to support the person and respect an unwise choice. Assess understanding, retention, use or weighing and communication by any means. If an inability is identified, explain whether impairment or disturbance of the mind or brain causes it. Use any distinct legal test required by the particular decision.
Use the actual options and significant consequences. Present information in short sections and accessible form, use familiar language and aids, allow breaks and consider hearing, vision, pain, medication and fluctuation. Retention need only be sufficient to make the decision.
Useful evidence may include diagnosis, cognitive history, medication, daily functioning, communication needs, previous wishes, professional records and details of the specific decision being assessed.
Risk factors should be recorded without being treated as shortcuts to incapacity. Relevant issues may include family conflict, urgency, financial pressure, inconsistent instructions, communication barriers, safeguarding concerns, dependency on others, or a history of cognitive impairment. The report should separate risk from the legal question of capacity.
A useful guide or report should identify the decision, relevant information and evidence, explain the support provided, and show how the conclusion follows. Readers should also be able to find the applicable official source and understand any limits or uncertainty.
A specialist report may assist where genuine doubt remains, the decision is complex or disputed or a legal process requires evidence. It is not required simply because a person has dementia. Discuss acute or reversible changes with the treating team and consider whether a non-urgent decision can wait.
Define the decision and time, provide appropriate support and explain the evidence and reasoning. Report retained abilities as well as difficulty and acknowledge uncertainty. The opinion does not confer authority on relatives or settle every related legal or professional issue.
It depends on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related. An independent, decision-specific assessment matched to those factors carries the most weight.
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.
Expect the report to identify the particular decision, support, findings and reasoning, including any causal link to impairment. For a will, the separate testamentary test must be addressed. Seek evidence where it answers a genuine question; an early diagnosis does not itself require an immediate paid assessment or guarantee that later decisions will remain valid.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Identify the decision causing concern and what support helps the person. Discuss reversible changes such as acute illness with the treating team, and seek a decision-specific assessment where doubt remains rather than assuming a diagnosis settles it.
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