GUIDES
Suitability depends on competence for this decision and this person, any prescribed professional requirements, independence and clear reasoning. Registration alone does not establish specialist expertise.
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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Suitability depends on competence for this decision and this person, any prescribed professional requirements, independence and clear reasoning. Registration alone does not establish specialist expertise. The sections below explain the evidence, practical steps and limits of the assessment or process.
For a formal opinion, look for competence in the relevant legal test and decision, ability to support the person’s communication, careful evidence and clear reasoning. Check professional registration where relevant and any prescribed form or court requirements. Everyday capacity decisions may be assessed by people already involved without a specialist qualification; the Mental Capacity Act does not create one universal assessor licence.
Suitability depends on the decision, person and purpose of the opinion. Check any profession-specific form requirement, the assessor’s relevant training, experience and ability to explain limitations or obtain additional input. Neither a course certificate nor a professional title alone establishes competence for every decision. There is no general statutory requirement that every everyday assessor hold professional registration.
For a regulated practitioner, check the appropriate current register and any restrictions on practice. Social Work England regulates social workers in England, Social Care Wales in Wales, and the relevant UK regulator applies for medicine, nursing and the regulated health professions. Registration provides accountability but does not demonstrate specialist capacity expertise by itself. Prescribed forms may impose additional eligibility requirements.
Ask how the practitioner applies the relevant test, identifies salient information, supports communication and explains any functional inability and causal link. Relevant training and experience can help demonstrate competence; volume or accreditation alone does not prove it. For ordinary wills, the assessor must understand Banks v Goodfellow and keep it distinct from the Mental Capacity Act framework.
Decision types have their own demands. Financial and property instructions need assessors who can master transactions before testing them; testamentary work needs the common law held precisely; litigation capacity needs the proceedings understood; welfare and residence work rewards experience of care systems and family dynamics. An assessor's history with the decision type in question is a fair and answerable inquiry, and a specialist practice can match the instruction to the assessor rather than sending whoever is free.
Suitability also runs to the person being assessed. Communication impairments, learning disability, dementia presentations, mental illness and acquired brain injury each reward assessors experienced in adapting method, pacing visits and evidencing practicable steps for that presentation, and for some people a speech and language background or joint working is what makes a fair assessment possible at all. The person's needs belong in the instruction precisely so this dimension of qualification can be matched.
Where evidence is intended for proceedings, ask about experience of the relevant forum, report requirements, record keeping and answering questions within the agreed scope. CPR Part 35 governs civil expert evidence; the Court of Protection has its own Part 15 rules and directions. Court experience may be relevant but does not replace expertise in the actual decision or the person’s needs.
Check and disclose any connection or interest that could affect the opinion. A treating professional or someone employed by an organisation involved in the decision is not automatically disqualified, but must be able to give objective evidence within their role. An outcome-linked fee, personal interest or unresolved conflict may make an instruction inappropriate. Explain how independence and any limitations are addressed.
The practical test is a short set of questions any suitable assessor answers easily: registration and regulator, years and volume of decision-specific capacity work, experience with this decision type and this presentation, method including in-person assessment and records review, report standards including Part 35 where relevant and availability for follow-up questions. Fluency in those answers is itself evidence of qualification; resistance to them is the clearest available warning.
Match competence to the decision, person, evidence and intended use, and verify any prescribed eligibility requirement. Check relevant registration without treating it as a universal licence or proof of specialist expertise. Agree the report’s scope, method, limits and follow-up before instruction.
No. A diagnosis alone does not establish incapacity. For a Mental Capacity Act decision, provide practicable support, examine understanding, retention, use or weighing and communication, then explain whether any inability is caused by an impairment or disturbance of mind or brain. The conclusion is specific to the decision and time.
Ask for the assessor's registration, their capacity-specific training and examples of the decision types they cover, plus how their reports are quality-assured. A credible assessor answers these questions directly; hesitation is itself information.
Formal assessment by a suitably qualified professional matters most where the decision is significant or likely to be scrutinised: wills, property transactions, Lasting Powers of Attorney, litigation and anything destined for the Court of Protection or the Office of the Public Guardian. A conclusion about one decision does not establish capacity for another.
The related pages below explain connected decisions, evidence requirements and legal processes.
Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled.
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