GUIDES
Solicitors should identify genuine capacity concerns, support the client and match any specialist instruction to the actual matter. Wills, LPAs, property, litigation and Court of Protection applications can require different tests, forms and procedural rules.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
39 Essex Chambers, Mental Capacity Guidance Note: Carrying out and recording capacity assessments.
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Solicitors should identify genuine capacity concerns, support the client and match any specialist instruction to the actual matter. Wills, LPAs, property, litigation and Court of Protection applications can require different tests, forms and procedural rules. This guide covers the relevant evidence, support, process and limits in England and Wales.
Solicitors should identify genuine capacity concerns, support the client and match any specialist instruction to the actual matter. Wills, LPAs, property, litigation and Court of Protection applications can require different tests, forms and procedural rules. A specialist opinion may assist genuine doubt, but does not transfer the solicitor’s responsibilities or guarantee the transaction’s validity.
Capacity concerns may arise when taking instructions, making a will or LPA, completing a transaction or conducting proceedings. Record the specific concern, provide support and decide whether further evidence is needed. The response should follow the actual matter and the solicitor’s competence, rather than automatically commission a specialist report.
Capacity to instruct and capacity for the substantive act can require separate consideration. In will-making, the golden rule is good practice concerning medical involvement for an older or seriously ill testator; it does not make a will valid or invalid by itself or become a universal rule for all legal work.
Identify the decision and time, reason for doubt, applicable test and intended use. Supply relevant documents, known gaps, support needs and material competing accounts. Confirm fee, timing and court requirements where applicable rather than promise a universal instruction length or turnaround.
Coordinate the evidence with the relevant decision or execution. An earlier opinion remains evidence about its stated time; consider whether material changes require an update. There is no universal rule that every opinion must be refreshed within a set number of days.
Retrospective opinions, litigation assessments and critical reviews can serve different issues. Define the questions, identify the court’s procedural rules and obtain permission where required. The expert’s duty is independent assistance to the court, rather than advancing the instructing party’s case.
Explain the concern respectfully and describe what support or evidence could help. The client should understand the purpose and have an opportunity to express their views. Family resistance or anxiety may have several explanations and is not evidence that someone plans to challenge the decision.
Read the scope, test, evidence, support, reasoning and limitations before using a report. Seek focused clarification where necessary and retain relevant attendance notes. A favourable opinion does not prevent a claim, validate every instruction or relieve the solicitor of professional judgement.
Where a firm frequently needs specialist input, agree secure referral, scoping, support and follow-up processes. Select the practitioner for the actual matter, check conflicts and confirm availability rather than assuming one provider or format suits every instruction.
Match capacity enquiries and evidence to the actual legal decision, support the client and apply the correct test and procedure. A report is one part of the evidence, with limits that should be understood before relying on it.
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.
The required report depends on the will, LPA, transaction, litigation or court application involved. It should explain the appropriate test, relevant time and evidence, support, reasoning and limits. A specialist opinion can assist genuine doubt but cannot guarantee validity or remove all later challenge.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Name the legal decision and applicable test before instruction. Send relevant documents and support information, coordinate evidence with the material date and confirm the rules, permission and costs for any expert work.
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.