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What is a retrospective capacity assessment?

Updated: Apr 21

We make so many decisions in everyday life, so much so we very rarely take the time to consider these decisions. It is a fact of life that we have to do this so we would not ever question this. Unless, of course, you had been diagnosed with an impairment or disturbance to the functioning of the mind or brain, or there was reason to believe that you lacked capacity at the time of the decision.

We all know the burden of proof is on an individual who claims that you lacked capacity at the time of the decision. However, the main indicator in these instances is what is called evidence (specifically retrospective assessments). So, for example, and this is a common decision that Nellie comes across. Your capacity to decide on your will and whom you do or do not want to include in this will.

As long as you can satisfy the testamentary criteria at the point of writing a will, this is less likely to be challenged after your demise. The criteria are Banks vs Goodfellow [1870]. But what if you did not think to have a testamentary capacity assessment at the time? If you wrote, instructed or amended a will after a diagnosis of dementia or if you were temporarily incapacitated due to an infection or an illness. If this can be proven via medical notes or care notes, you could face issues in the future of someone contesting your will.

This would ordinarily happen after your demise, so although this would not directly impact you, it could cause extreme stress for your loved ones at a time when they are grieving for your loss.

It is not only wills that can be contested. Any major decision you make whilst you may have an impairment or disturbance of the mind or brain's functioning can be questioned. At Nellie, we have been instructed to act on claims concerning litigation, divorce, residency, capacity to gift, all retrospectively. Again in all of these instances, we have to explore the evidence to form a weighed up and factual decision based on how the client was presenting when the decision was made. This brings with it many complexities, not only the fact that the Mental Capacity Act (2005) states without a doubt that capacity is time and decision specific, but also if the impairment of the mind or brain was substantial enough to impact on a majority of decisions at the time of the specific decision that we have to investigate retrospectively. Suppose all evidence points to the individual lacking capacity in all major decisions such as property and financial affairs or health and care. In that case, the evidence tends to lend itself to a lack of capacity.

However, this means that the principles of the Mental Capacity Act (2005) and the code of practice are now at odds as, again, it is decision specific. Although the principles do state that there is an assumption of capacity.

We advise that if you have any doubts at all that an assessment might be contested, you complete a mental capacity assessment at the time as the Mental Capacity Act (2005) is time and decision-specific.

But if you did not, we can carry out retrospective capacity assessments based on evidence. That may be medical notes or care notes and any professional opinions of how you presented at the time. This would also include family members. However, reliance on just family members would not be adequate for going in front of a judge.

We would review all of the evidence which is available from the time of the decision. This can be extremely in-depth, dependent on your circumstances. You may have had dealings with Dr’s consultant's or carers at the point of the decision, so we would have to review all of the evidence to inform our decision. We review which medication you may have been taking and if this could have impacted your decisions or if the impairment or illness could also affect your decision-making abilities.

Whilst we do feel that Nellie have the competence and confidence to complete retrospective mental capacity assessments as we have completed numerous retrospective capacity assessments and have excellent specially adapted assessments which are bespoke and designed specifically to address all factors which should be considered with retrospective assessments, we do advise that if you are faced with a decision, and there is an impairment or disturbance to the functioning of the mind or brain then a mental capacity assessment should be completed at the time of the decision.

This will mean that you avoid storing up issues for the future; at best, a retrospective assessment will rely on a Judge’s decision on whether they will accept this or not. We at Nellie have been hugely successful in this area due to our knowledge and expertise and our specially designed assessment proformas at being able to evidence that an individual had capacity at the time.

At worst, as in the case of “Jean Clitheroe”, the Judges’ decision that they believed that Jean lacked the testamentary capacity at the time of writing and amending her will is upheld. In this instance, “Jean” had been bereaved, and consideration had not been given to this at that time. Our retrospective assessment would have addressed the specific case law and criteria, and we would have reviewed the evidence at that time to see if she was indeed making decisions based on the fact that she had been bereaved (Key vs Key [2010]).

However, this would likely be upon the balance of probabilities as there are no facts that would state if she was capacious or not. This would rely solely on evidence and the professionals' review of the evidence at hand. It is likely that in this case, “Jean” would have lacked testamentary capacity. However, a testamentary capacity assessment at the time, considering Key vs Key [2010], would have saved the family from all of the pressure and additional stress of court whilst just losing their Mum.

It is always better to be on the “safe side” so if you think that an individual is making a decision that could be contested in the future then arrange for a mental capacity assessment at the time of the decision. If not then Nellie can do this retrospectively, this starts the conversations and if the evidence is there then it can be reasonably argued based on that.

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