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As a mental capacity assessor, I am often asked why multiple assessments are needed for the same individual. From the outside, it can seem repetitive, even unnecessary. However, one of the most fundamental principles of capacity is that it is decision-specific. This means that a person may have the capacity to make some decisions, but not others. For example, an individual may be able to decide what to wear, what to eat, or where to live. At the same time, they may lack the capacity to make more complex decisions, such as investing money, purchasing property, or taking out a loan. These are not contradictions, they reflect the reality that different decisions require different levels of understanding and reasoning. The Legal Framework Behind Capacity All capacity assessments are grounded in key legal principles. These include: The presumption of capacity, meaning every adult is assumed to have capacity unless proven otherwise. The requirement to take all practicable steps to support an individual in making their own decision before concluding they lack capacity. The recognition that individuals are entitled to make unwise decisions. A poor decision does not, in itself, indicate a lack of capacity. The requirement that any inability to make a decision must be caused by an impairment or disturbance in the functioning of the mind or brain. This impairment may be evidenced through a formal diagnosis, clinical findings or other observable indicators of cognitive disturbance. The Functional Test: The Core of Every Assessment Most capacity assessments are structured around the functional test set out in the Mental Capacity Act 2005. This requires us to consider whether a person can: Understand the information relevant to the decision. Retain that information long enough to make the decision. Use or weigh that information as part of the decision-making process. Communicate their decision by any means. While these criteria remain constant, the information relevant to the decision changes every time. What Counts as “Relevant Information”? Relevant information is not generic, it is tailored to the specific decision being assessed. In litigation capacity assessments, for example, relevant information may include: How the case is being funded. The risks of losing, including potential costs. The nature of the claim. The decisions that may arise throughout proceedings. These points are often drawn from formal guidance, such as a certificate of capacity to conduct proceedings. However, how this information is explored depends entirely on the individual. Questions might include: “What are you asking the court to decide for you?” “What does no win, no fee mean?” “What could happen if the case is unsuccessful?” These are not fixed scripts and every assessment is person-specific, requiring the assessor to adapt language, pace and questioning in real time to ensure the individual is supported to demonstrate their ability. Why One Assessment Isn’t Enough I was once asked to complete a testamentary capacity assessment, to determine whether an individual had the capacity to make a will. Testamentary capacity is governed not by the Mental Capacity Act, but by the long-standing case of Banks v Goodfellow. This requires that the individual understands: The nature of making a will. The effects of making a will. The extent of their estate. The claims of potential beneficiaries. Any moral obligations they may have. Following the assessment, I was satisfied that the individual had the capacity to proceed and the will was signed. However, immediately afterwards, I was asked to sign additional documents confirming that the same individual had capacity to: Add a personal assistant as a cardholder on their bank account. Appoint a Lasting Power of Attorney for property and finances. This is where the principle of decision-specific capacity becomes critical. Why Capacity Does Not “Carry Over” The relevant information required to appoint a Lasting Power of Attorney is significantly more complex than that required to make a will. To appoint an LPA, an individual must typically understand: The legal effect of the LPA. Who the attorneys are. The scope of their powers and any restrictions. When those powers can be used. The range of assets they may control. The ability to revoke the LPA while capacitous. The risks and benefits of creating, or not creating, the LPA. When compared to testamentary capacity, there is minimal overlap. Although the individual had the capacity to make a will, this did not automatically mean they had the capacity to grant a Lasting Power of Attorney. These are distinct legal decisions, requiring separate assessments. Why This Can Feel Frustrating For individuals and families, this process can understandably feel repetitive. It may involve multiple assessments, additional time and increased cost. However, this approach exists for an important reason. A thorough, decision-specific assessment protects the individual at the centre of the decision, their family and support network and the professionals involved. Most importantly, it ensures that decisions are made lawfully, safely and in the person’s best interests where required. When Things Go Wrong The importance of this approach is highlighted in case law. In The Public Guardian v RI & Others (2022), an individual with a lifelong learning disability and chronic schizophrenia had executed an LPA. However, following safeguarding concerns, retrospective review concluded that he was unlikely to have had capacity at the time. As a result, the LPA was declared invalid and cancelled. Had a proper capacity assessment been undertaken at the time, concerns may have been identified earlier and alternative safeguards could have been put in place to protect the individual. This is also why capacity evidence can be so important in Court of Protection matters, particularly where there are disputes, safeguarding concerns, deputyship issues or questions about whether a previous legal document should be relied upon. Final Thoughts Capacity assessments are not about restricting autonomy, they are about protecting it. By recognising that capacity is decision-specific, we ensure that individuals are supported to make their own decisions wherever possible, while also safeguarding them where they cannot. It may take more time and may require more than one assessment, but ultimately it is a process designed to get the right decision, for the right person, at the right time. Genevieve Walls

The local authority has made a decision about your child's EHCP. You think the plan does not properly reflect their needs, especially around social care, daily support, or provision beyond the school day. This guide explains when an independent social work report can help your appeal, what it should cover, and when you may need wider SEND Tribunal preparation and representation. Key statistics 99% of SEND appeals decided by the tribunal were in favour of the appellant in 2024/25 There were 25,000 registered SEN appeals in the 2024/25 academic year 61% of registered SEN appeals in 2024/25 were related to EHCP contents SOURCE: Ministry of Justice Tribunal Statistics Quarterly, July to September 2025. Check the latest quarterly release before publishing. What is the SEND Tribunal? The First-tier Tribunal (Special Educational Needs and Disability), commonly called the SEND Tribunal or SENDIST, is an independent judicial body that hears appeals from families and young people against decisions made by local authorities about Education, Health and Care Plans (EHCPs). For the full step-by-step appeal process, see How EHCP appeals work. You can appeal to the SEND Tribunal if the local authority has: Refused to carry out an EHC needs assessment Completed an assessment but refused to issue an EHCP Issued an EHCP but you disagree with its contents - including the named school or provision Refused to amend the EHCP following an annual review Decided to cease maintaining your child’s EHCP Deadline: You have two months from the date of the local authority decision letter to register your appeal or one month from the date of mediation. You must also contact a mediation adviser before filing in most cases, even if you decide not to proceed with mediation. You will receive a mediation certificate, which is normally needed with the appeal form. Always check the exact deadline on your decision letter and tribunal paperwork. What is a SEND Tribunal report? A SEND Tribunal report is an independent evidence pack that can be produced by a qualified, registered social worker who has no connection to the local authority involved in the case. It evaluates the child or young person's care, social care, and support needs in the context of their EHCP, and makes evidence-based recommendations about what the plan should say. It is submitted to the SEND Tribunal as part of the family’s evidence bundle. Tribunal panel members - including a legally qualified judge and a specialist - will weigh the independent report alongside the local authority’s own assessments when reaching their decision “An independent report helps the tribunal understand the child’s needs from a professional who is separate from the local authority decision being challenged.” The report can be commissioned by the family directly or through their solicitor. At Little Nellies, we work with both families and legal professionals and produce reports that are clear, evidenced, and accessible to parents, professionals and the tribunal panel. EHCP sections the report covers An EHCP has eleven sections, A through K. An independent social work report for SEND Tribunal usually focuses on the parts where social care evidence and daily support needs matter most. For wider EHCP support across applications, draft plans, mediation and appeals, visit the Little Nellies EHCP support hub. Section What it covers Role of independent report B Special educational needs Describes the child's special educational needs. An independent report can identify needs the LA has missed or understated. D Social care needs Where an independent social work assessment carries most direct weight. The social worker identifies needs, evidences them, and recommends what this section should say. F Special educational provision Must be specific, detailed, and quantified per the SEND Code of Practice. An independent report challenges vague provision and proposes evidenced, concrete wording. H Social care provision (H1 and H2) H1 covers provision the LA must arrange under the Care Act or Children Act. H2 covers other desirable provision. An independent report distinguishes these and ensures neither is omitted. SEND Code of Practice: EHC Plans should be clear, concise, understandable and accessible to parents, children, young people, providers and practitioners. A well-prepared independent social work report should follow the same standard. When do you need a report? Not every tribunal case requires one - but in most disputes about the social care content of an EHCP, an independent assessment significantly strengthens the family’s position. Here is a practical guide: Scenario Independent report recommended? Disputing Section D, F, or H content Yes - essential Local authority has no social care assessment on file Yes - fills the evidential gap Child's needs span children's and adult social care Yes - specialist expertise needed Arguing for a waking day curriculum Yes - almost always required Dispute is only about named school (Section I) Not always - depends on whether social care needs are in dispute Dispute is purely about educational provision and LA has a full assessment May not be necessary - an Ed Psych report may suffice What makes a good report? Not all independent reports are equal. Here is what separates a report that strengthens your case from one that makes no difference: LOOK FOR: • Written by a registered expert • Genuinely independent - no connection to the local authority or school in dispute • Based on direct assessment - the expert should have met your child and reviewed existing documentation • Specific and quantified - type, frequency, duration, and who is responsible for each provision • Covers the right sections - D, F, and H, not just one • Accessible to non-specialists - clear enough for a lay tribunal panel member to follow AVOID: • Reports written without meeting the child • Reports that simply restate the local authority’s position • Reports with no specific recommendations for EHCP wording • Reports from someone without experience of EHCP law or SEND Tribunal process FAQs What is a SEND Tribunal report? A SEND Tribunal report is an independent social work assessment produced by a qualified, registered SEND expert (oftentimes, an independent social worker). It evaluates a child or young person's care, support, and social care needs in the context of their EHCP, and is submitted as evidence to the First-tier Tribunal (Special Educational Needs and Disability) when appealing a local authority decision. Which sections of an EHCP does a social work report cover? An independent report typically makes recommendations in relation to Section B (special educational needs), Section D (social care needs), Section F (special educational provision), and Section H1/H2 (social care provision). It can also address whether provision should extend beyond the school day - a waking day curriculum. Can we commission a report directly, without a solicitor? Yes. A SEND Tribunal report can be commissioned directly by a family or through their solicitor. Either route carries the same evidential weight at tribunal. Nellie Supports works with both families and legal professionals. How long does a SEND Tribunal report take? At Nellie Supports, SEND-related assessments and reports are delivered within 10 to 14 working days of instruction, subject to availability and case complexity. Tribunal timetables are strict - instruct as early as possible once your appeal is registered. Can a report cover both children's and adult social care? Yes - and this matters. Because EHCPs can be maintained until a young person is 25, cases can span children's and adult social care. Nellie Supports has registered social workers with experience across both. Does Wales use the same SEND Tribunal process? The First-tier Tribunal (SEND) covers England. In Wales, appeals about Statements of Special Educational Needs are heard by the Special Educational Needs Tribunal for Wales (SENTW). Contact Nellie Supports directly for guidance on the process applicable to your location.

On 2 June 2026, the Challenging Behaviour Foundation published its response to the Supreme Court judgment on deprivation of liberty. For social workers, this is not a remote legal issue. It goes directly to how we understand liberty, consent, restriction, safeguarding and human rights in the lives of disabled people. The judgment concerns a Supreme Court reference brought by the Attorney General for Northern Ireland about deprivation of liberty, mental capacity and whether a person who lacks capacity can give valid consent to confinement through their wishes and feelings. In practical terms, it revisits the legal territory shaped by P v Cheshire West and Chester Council, the landmark 2014 case that gave practitioners the well-known “acid test”: is the person subject to continuous supervision and control, and are they not free to leave? That test mattered because it gave a clear, practical safeguard. It meant that a person’s right to liberty did not depend on whether they could object, whether they appeared happy, whether they were compliant, or whether others viewed the placement as kind, necessary or normal. For many disabled people, particularly people with learning disabilities, autistic people, people with complex needs and people who communicate distress or disagreement in non-verbal ways, that safeguard was profoundly important. At Nellie Supports, our work in mental capacity assessments, Court of Protection reports and wider independent social work services frequently sits at the point where legal rights, care arrangements and real-world restrictions meet. This is why the judgment matters so much in practice. Why Cheshire West mattered Cheshire West was never perfect in its practical consequences. The Deprivation of Liberty Safeguards system became overloaded, under-resourced and, in many places, deeply delayed. Families often found the system confusing. Professionals were often left trying to apply complex legal principles in pressured, underfunded services. But the principle at the heart of Cheshire West was simple and powerful: liberty is universal. A person does not have fewer human rights because they are disabled. A person does not lose the protection of Article 5 of the European Convention on Human Rights because they are compliant. A person does not stop being deprived of liberty simply because the arrangements are described as care, support, supervision or protection. That principle was particularly important because restrictive care arrangements can become normalised. Locked doors, constant supervision, restrictions on contact, control over movement, limited access to the community, restraint, seclusion, medication, environmental restriction and institutional routines can all become part of someone’s daily life. Without proper scrutiny, those restrictions can become invisible. This is why deprivation of liberty safeguards have never just been a legal process. They are a human rights checkpoint. They ask whether the arrangements are lawful, necessary, proportionate, in the person’s best interests, and whether there is a less restrictive way to meet the same need. What has changed? The Supreme Court has now considered whether the Cheshire West approach should continue to determine when a person is deprived of their liberty, particularly where a person lacks capacity under domestic law but appears to express wishes and feelings indicating consent to their living arrangements. That is a significant shift in focus. The concern is not that wishes and feelings are irrelevant. They are central to good social work practice. The Mental Capacity Act 2005 requires us to take them seriously. Any person-centred assessment should give proper weight to the individual’s voice, communication, preferences, history, relationships and emotional response to their circumstances. The concern is whether expressed happiness, apparent compliance or lack of objection may now be used to reduce legal scrutiny in situations that are still highly restrictive. That risk should concern every social worker. Why this matters for disabled people Many disabled people, particularly people with severe learning disabilities, autism, complex communication needs, acquired brain injury, dementia or profound cognitive impairment, may not object in ways that services recognise. Some people may not use speech. Some may have learned compliance after years of institutional care. Some may express distress through behaviour that is then framed as “challenging” rather than communicative. Some may appear content because they do not know alternatives exist. Some may be happy with aspects of their care, while still living under restrictions that would be unthinkable for a non-disabled person. This is where human rights practice becomes real. The right to liberty is not an abstract legal concept. It is protection against institutionalisation. It is protection against coercion. It is protection against restrictive practice becoming routine. It is protection against people being placed out of sight, without meaningful challenge, advocacy or review. The Challenging Behaviour Foundation has rightly highlighted the potential impact on people with learning disabilities and their families. If legal safeguards are narrowed without robust alternatives in place, the people most at risk will not usually be those who can complain loudly, instruct solicitors, contact journalists or challenge public bodies. They will be people who may not be able to clearly object. That is why this judgment is so concerning. The problem was the system, not the principle It is important to be honest about the existing DoLS framework. It has not worked as it should. There have been unacceptable delays. Local authorities have carried heavy backlogs. Families have experienced delay and confusion. Best Interests Assessors and mental capacity professionals have often been left carrying the consequences of a system that was never resourced properly. The Government has already recognised wider problems in the system, including through its work on Liberty Protection Safeguards. Reform is needed. But the answer to an imperfect safeguarding system cannot be to leave people with fewer protections. The answer should be a better system: clearer guidance, proper resourcing, skilled assessment, independent advocacy, regular review, meaningful family involvement, better training and a genuine commitment to least restrictive practice. A safeguard that is delayed needs fixing. A safeguard that is bureaucratic needs reform. A safeguard that is inconsistently applied needs investment and leadership. But a safeguard that protects people from unlawful restriction should not simply be narrowed because the system built around it has been allowed to fail. What social workers need to do now After my conversation last week with Sam, the interim CEO of BASW UK, it feels more imperative than ever that social workers understand human rights not just in theory, but in practice. This judgment makes that even more urgent. Social workers need to be confident in the Mental Capacity Act. We need to understand deprivation of liberty, Article 5, proportionality, necessity, best interests, advocacy, supported decision-making and least restrictive practice. But more than that, we need to know how to apply these principles in real life. That means asking difficult questions: Is this person really free to leave? Who controls their day-to-day life? What restrictions are in place? Are those restrictions necessary? Are they proportionate? Has the person been supported to understand and express their views? How does this person communicate objection, distress, fear, resignation or disagreement? Is the person’s apparent happiness being treated too simplistically? Could there be a less restrictive option? Has independent advocacy been considered? Are family concerns being heard? Is this genuinely care, or has care become control? These questions are not anti-care. They are good care. They are the questions that prevent restrictive arrangements from becoming normalised. They are the questions that protect people from being hidden in plain sight. Wishes and feelings must not become a shortcut One of the most delicate issues following this judgment will be how professionals interpret wishes and feelings. A person’s wishes and feelings must always matter. They should never be dismissed simply because the person lacks capacity for a particular decision. Social workers should be leaders in ensuring that disabled people’s voices are heard, respected and acted upon. But wishes and feelings must not become a shortcut around legal protection. There is a difference between genuinely understanding and respecting a person’s expressed will, and using apparent contentment to avoid scrutiny of restrictive arrangements. There is also a difference between a person being happy with trusted staff, familiar routines or a preferred home environment, and that person giving meaningful consent to restrictions on liberty. Social work practice must be alert to that distinction. This is particularly important in complex cases involving capacity to decide where someone lives, care arrangements, contact with others, safeguarding concerns, family disagreement or potential Court of Protection involvement. Liberty, safeguarding and professional courage This judgment lands at a time when adult social care is already under strain. Services are stretched. Placements are limited. Community support is inconsistent. Families are exhausted. Professionals are pressured. Restrictive options can sometimes appear easier to organise than creative, rights-based support. That is precisely why social workers must remain anchored in human rights. The core question is not simply “is this placement working?” It is also “is this person free?” And if they are not free, we must ask whether that restriction is lawful, necessary, proportionate, reviewed, challengeable and genuinely the least restrictive option. Safeguarding is not only about responding after harm has happened. It is also about identifying the conditions in which harm becomes more likely. Reduced scrutiny, unclear legal thresholds, weak advocacy and normalised restriction are all safeguarding risks. A call to social workers Social workers have a vital role in what happens next. We must not wait passively for new guidance. We must continue to practise in a way that recognises disabled people as rights-holders. We must challenge restrictive practice. We must record clearly. We must involve advocates. We must listen to families. We must understand communication. We must apply the Mental Capacity Act properly. We must be prepared to ask uncomfortable questions when care arrangements become controlling. Above all, we must remember that liberty matters most when a person is least able to defend it for themselves. Disabled people’s rights are not optional. They are not dependent on convenience, resources, compliance or professional assumptions. They are not removed because a person appears settled, quiet, happy or unable to object. Human rights belong to everyone. Liberty matters. Safeguards matter. And social workers must be ready to defend them in practice. How Nellie Supports can help Nellie Supports provides independent mental capacity assessments across England and Wales, including decision-specific assessments where questions arise about care, residence, contact, finances and Court of Protection matters. For Court of Protection evidence, our COP3 mental capacity assessment service supports families, deputies, attorneys, solicitors and professionals who need clear, structured and decision-specific capacity evidence. We also provide wider independent social work services where families or professionals need a social care perspective on restrictive arrangements, care planning, safeguarding concerns or complex support needs.

A family member may be told that visits must be supervised. Telephone calls may be limited. Visits may be reduced to a fixed time each week. In some cases, contact may be stopped altogether. This can be deeply distressing, particularly where the family member believes the restrictions are unfair, based on misunderstanding, or imposed because they raised concerns about care. At Nellie Supports, we provide independent mental capacity assessments, capacity assessments about care and support decisions, COP3 mental capacity assessments, and Court Reports and Expert Assessments for families, solicitors and professionals involved in disputes about care, residence, capacity and contact. Where contact with a loved one has been restricted, supervised or removed, we can provide an independent social work assessment that considers the person’s wishes and feelings, the evidence of risk, and whether the current restrictions are necessary, proportionate and in the person’s best interests. Need help with restricted contact? Contact Nellie Supports to discuss whether an independent assessment may help. Why contact restrictions are a serious issue Restrictions on family contact are not just a practical inconvenience. They can affect a person’s emotional wellbeing, identity, relationships and family life. Where the person may lack capacity to make decisions about contact, the decision should usually be considered under the Mental Capacity Act 2005. Section 4 of the Act sets out the best interests checklist, including the need to consider the person’s wishes and feelings and consult people involved in their care or interested in their welfare. If there is uncertainty about whether the person can make their own decision about contact, a mental capacity assessment may be needed. Where the issue relates to where someone lives, how they receive care, or who is involved in their care arrangements, Nellie Supports can also assist with capacity assessments about care and support decisions. Contact restrictions should not be imposed simply because a family member is viewed as difficult, challenging or inconvenient. There may be legitimate reasons to restrict contact, such as safeguarding concerns, distress, coercion, or risks to the person’s care. However, any restriction should be based on evidence, proportionate, reviewed regularly, and as least restrictive as possible. If the situation is complex, disputed or likely to involve solicitors, an Enhanced Mental Capacity Assessment may be more appropriate than a straightforward assessment. If you are unsure which assessment is needed, make an enquiry with Nellie Supports. What did the Court of Protection say about restricted contact? A recent Court of Protection case, PB, Re (Appeal: Best Interests: Restrictions on Contact in a Care Home) [2026] EWCOP 21, considered restrictions on contact between a mother and daughter in a care home setting. The Court recognised that restrictions on contact between a vulnerable adult and close family members engage Article 8 rights to private and family life. The judgment also considered the practical difficulty where a care provider says that unless contact is restricted, the placement may break down. The judgment is important because it shows that the Court may sometimes accept restricted or supervised contact where the alternative could be the loss of the person’s placement. However, the Court also made clear that contact arrangements are not static and should remain under active review. For families, this creates a difficult situation. It may not be enough simply to say: “The restriction is unfair.” Families may need independent evidence addressing: what the person wants; whether the alleged risks are properly evidenced; whether the restriction is proportionate; whether less restrictive options have been considered; whether contact could safely increase; whether a structured contact plan could reduce conflict. This is where Nellie Supports’ Court Reports and Expert Assessments, mental capacity assessments, and wider social care and case management services may help. If you are involved in a dispute about contact, residence or care, contact our team to discuss the best assessment route. Care homes, visiting rights and human rights In care home settings, visiting is also affected by Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Regulation 9A says that, unless there are exceptional circumstances, people whose care involves accommodation in a care home, hospital or hospice must be facilitated to receive visits. The Regulation also refers to taking necessary and proportionate precautions so visits can take place safely. In the PB case, the Court discussed Regulation 9A in the context of restrictions on visits, proportionality, safety and care home obligations. In addition, section 73 of the Care Act 2014 can mean that certain registered care providers are treated as exercising a public function for the purposes of the Human Rights Act 1998 when providing publicly arranged or funded care. The Court in PB accepted that this meant the care home had to comply with Article 8 rights when interfering with family life. This does not mean that all contact must always be unrestricted. It does mean that restrictions should be properly justified. Families are entitled to ask: What specific risk is being relied on? Is there evidence of that risk? Has the person’s own view been assessed? Has a best interests decision been completed? Have less restrictive options been considered? Is the restriction being reviewed? Could contact safely increase with a plan in place? An independent capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, or Court Report and Expert Assessment can help answer these questions in a structured, evidence-based way. How Nellie Supports can help Nellie Supports is an independent private social work practice. We do not provide care home placements or domiciliary care packages. Our role is to provide independent social work evidence where there are concerns or disputes about mental capacity, care, contact or best interests. In cases where contact has been restricted, supervised or stopped, we can provide a structured assessment that considers the full picture. This may include: speaking with the family member; reviewing relevant correspondence and records; assessing the person’s wishes and feelings; considering the importance of the relationship; reviewing the stated reasons for the restriction; considering safeguarding concerns; identifying whether less restrictive options are available; preparing a staged contact plan; producing an independent report for professionals, solicitors or the Court of Protection. This work may sit alongside our existing mental capacity assessment service, COP3 mental capacity assessments, Court Reports and Expert Assessments, and wider social care and case management services. To discuss whether Nellie Supports can assist, contact us here. What an independent contact assessment considers Every case is different, but our assessment may consider the following. The person’s wishes and feelings Where possible, we seek to understand what the person wants, how they experience contact, and whether they appear distressed, reassured, settled or unsettled by contact. If the person has difficulty communicating, we consider alternative ways of understanding their wishes and feelings. This may be especially important where a person has dementia, acquired brain injury, learning disability, mental disorder or communication difficulties. Where required, this can be considered alongside a formal mental capacity assessment. The family relationship We consider the history and importance of the relationship. For many people, contact with a spouse, child, sibling or close relative is central to their identity and wellbeing. Where there is a dispute about family contact, an independent assessment may help professionals and the Court understand the person’s welfare in a fuller context. If the case is already in legal proceedings, a report under our Court Reports and Expert Assessments service may be appropriate. The evidence behind the restriction We review what has actually been alleged or recorded. There is a difference between: a genuine safeguarding risk; a disagreement about care; a communication breakdown; a family member raising legitimate concerns; a provider finding a relative difficult to manage. This distinction is important. A contact restriction should be based on evidence, not simply on conflict between family members and professionals. Whether the restriction is proportionate A complete ban on contact is a significant step. Supervision, shorter visits, structured communication, agreed boundaries or a staged contact plan may sometimes be less restrictive alternatives. Where Court of Protection proceedings are ongoing or anticipated, our Court Reports and Expert Assessments can address whether restrictions are necessary, proportionate and in the person’s best interests. Whether the contact plan can be safely improved In some cases, our recommendation may be that restrictions remain necessary. In other cases, we may recommend a gradual increase in contact, clearer expectations, independent supervision, or a review meeting. The focus is always on the person’s welfare, rights, safety and best interests. Examples of situations where we may be able to help Families, solicitors or professionals may contact Nellie Supports where: a care home has reduced visits; contact has been made supervised; a family member has been banned from visiting; telephone or video contact has been restricted; a local authority says contact is not in the person’s best interests; there is a dispute about whether contact causes distress; a family member is accused of disrupting care; a person has been moved into care and family contact has changed; Court of Protection proceedings are being considered; an independent report is needed. These cases often overlap with wider questions about capacity, care needs, residence, safeguarding and family involvement. Nellie Supports can advise whether the most appropriate route is a mental capacity assessment, capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, COP3 mental capacity assessment, Court Report or Expert Assessment, or broader social care assessment. If contact with your loved one has been restricted, make an enquiry today. We are independent, not partisan It is important to be clear: Nellie Supports does not simply produce reports saying that contact should be restored. Our role is to provide an independent professional opinion. Sometimes the evidence may support increased contact. Sometimes it may support supervised or structured contact. Sometimes there may be genuine risks that need to be managed before contact can change. What we provide is a careful, evidence-based assessment that can help families, professionals and the Court understand what is happening and what options may be available. This independent approach is central to our mental capacity assessment, COP3 assessment, Enhanced Mental Capacity Assessment, and Court Reports and Expert Assessments work. You can also read more about our wider approach to independent practice on our Private Social Work and Professional Standards pages. Can our reports be used in Court of Protection proceedings? Yes, where appropriate. Nellie Supports can provide reports for solicitors, families, deputies, attorneys or professionals involved in welfare disputes. Our reports may be relevant where the Court of Protection is considering: contact; residence; care arrangements; best interests; family involvement; whether less restrictive options are available; whether further assessment is required. Where a report is required for court proceedings, instructions should usually be provided by a solicitor, and we can work within a formal letter of instruction. You can learn more about this work on our Court Reports and Expert Assessments page. If the court requires a specific COP3 form, our COP3 mental capacity assessment service may also be relevant. For solicitor instructions, contact Nellie Supports to discuss timescales, fees and suitability. What should families do if contact has been removed? If contact with a loved one has been restricted or stopped, it is important to act carefully. You may wish to: Ask for the reasons in writing. Ask what evidence the decision is based on. Ask whether a best interests decision has been completed. Ask when the restriction will be reviewed. Ask whether less restrictive options have been considered. Keep your own written record of events. Seek legal advice where necessary. Consider an independent social work assessment. A well-prepared independent assessment can help move the issue away from conflict and towards evidence, risk management and practical planning. Nellie Supports can help families and solicitors decide whether a mental capacity assessment, capacity assessment about care and support decisions, Enhanced Mental Capacity Assessment, COP3 mental capacity assessment, Court Report or Expert Assessment, or broader social care assessment is most appropriate. Need an independent assessment? Nellie Supports provides independent social work assessments for families, solicitors and professionals where contact with a loved one has been restricted, supervised or stopped. We can help by assessing the person’s wishes and feelings, reviewing the evidence of risk, considering best interests, and recommending practical options for safe and meaningful contact. Contact Nellie Supports today to discuss whether an independent contact restriction assessment may help. Has contact with a loved one been restricted or stopped? Nellie Supports provides independent social work input, mental capacity assessments, COP3 assessments, social care assessments, and Court Reports and Expert Assessments for families, solicitors and professionals. Our reports can consider whether restrictions are necessary, proportionate and in the person’s best interests, and whether less restrictive contact arrangements may be possible. Make an enquiry

At Nellie Supports, we have always believed that professional work should do more than sound confident. It should be clear, evidence-led, properly reasoned, and strong enough to stand up to scrutiny. That belief now has a name: the Nellie Standard. The Nellie Standard is the framework we use across mental capacity assessments, court reports and expert assessments, NHS Continuing Healthcare support, advocacy, reporting, and evidential work. It sets the standard we believe professional work should meet before a family, solicitor, deputy, local authority, NHS body, tribunal, or court is asked to rely on it. In simple terms, it reflects a straightforward idea: professional conclusions should not rest on assumption, vague opinion, or generic wording. They should be based on the right test, supported by visible evidence, and explained with enough clarity that others can follow the reasoning behind them. That matters because the work we do often sits alongside significant decisions. Whether the issue is mental capacity, care funding, NHS Continuing Healthcare appeals, COP3 evidence, retrospective analysis, or another evidence-led service, the quality of the assessment and the quality of the reasoning both matter. A conclusion is only as strong as the process behind it. The seven principles behind the Nellie Standard The Nellie Standard gives us a clear framework for that process. It is built around seven principles: Evidence before opinion The correct test first Specific analysis, not generic description Supportive process Transparent reasoning Clear conclusions Capable of scrutiny These principles shape how we accept instructions, how we gather and review evidence, how we structure reports, and how we explain conclusions. They also reflect something important about how we see professionalism: not as presentation, but as method. For example, in a mental capacity assessment, the question is not whether someone has capacity “in general”. The assessment must focus on the specific decision, the relevant information, the practicable steps taken to support the person, and the evidence that explains how the conclusion was reached. That is why we place emphasis on decision-specific work, including assessments for managing finances, COP3 applications, trustee decisions, litigation-related matters, and other complex situations where a clear evidential framework is needed. Why the standard matters Professional evidence is often relied on by people who are making serious decisions. A solicitor may need a report that can support legal advice. A family may need a clear explanation of why a conclusion has been reached. A deputy or attorney may need evidence that shows proper reasoning. A court or tribunal may need a report that is structured, balanced and capable of scrutiny. In those situations, vague wording is not enough. The Nellie Standard is designed to reduce ambiguity. It asks: Has the correct legal or professional test been identified? Is the evidence visible? Has the person been supported to participate where possible? Are the limits of the evidence explained? Is the reasoning clear enough for someone else to follow? Does the conclusion answer the actual question asked? This approach also informs our wider guidance for families and professionals, including our resources on how to prepare for a mental capacity assessment, what makes a capacity report court-ready, and common mistakes in mental capacity reports. Independence is part of the standard The Nellie Standard is also about independence. Good professional work should not be shaped around the outcome someone hopes for. Where evidence is limited, mixed, or incomplete, that should be identified honestly. Where a conclusion can be reached, it should be reached clearly and proportionately. That applies whether we are completing a capacity assessment, reviewing care records, preparing an expert-style report, supporting a CHC challenge, or helping a family understand a complex decision-making process. Independence does not mean being detached from the people involved. It means being fair, evidence-led, and clear about the basis for any conclusion. A practical framework, not a slogan For us, this is not a slogan. It is a practical framework for how we work and the standard we hold ourselves to. The Nellie Standard affects: how we review instructions; how we decide what evidence is needed; how we identify the relevant legal or professional test; how we support participation; how we record reasoning; how we explain uncertainty; how we structure conclusions. Over time, we will be sharing more about what the Nellie Standard means in practice and how it informs the work we do across Nellie Supports. For now, this introduction marks an important step: making our approach explicit, accountable, and easier for others to understand. Because when people are being asked to rely on professional work, the standard behind it should be visible. Need evidence-led support? If you need a clear, properly reasoned assessment, report, or review, you can explore our main services here: Mental Capacity Assessments COP3 Mental Capacity Assessments NHS Continuing Healthcare Funding Support CHC Appeal Support Court Reports and Expert Assessments If you are unsure what type of assessment or report is needed, contact Nellie Supports and we can help identify the right route before work begins.

When someone may be struggling to make an important decision, one of the first questions families and professionals often ask is: Who is allowed to complete a mental capacity assessment? There is a common misconception that mental capacity assessments must always be completed by a doctor. In reality, this is not always the case. The right assessor depends on the decision being assessed, the reason the assessment is needed, and the type of evidence required. Mental capacity is not assessed in a general way. A person is not simply found to “have capacity” or “lack capacity” for everything. Capacity is decision-specific and time-specific. This means the assessment must focus on the actual decision that needs to be made, at the time it needs to be made. For more formal or complex decisions, it is important that the assessment is completed by someone with the right knowledge, training and practical experience in applying the Mental Capacity Act 2005. Does a mental capacity assessment have to be completed by a doctor? No. A mental capacity assessment does not always have to be completed by a doctor, GP or psychiatrist. Doctors can be important in some cases, especially where there are complex medical or psychiatric issues. Medical evidence may help explain a diagnosis, condition or impairment that could affect the person’s decision-making. However, a mental capacity assessment is not simply a medical opinion . The assessment is about whether the person can make a specific decision for themselves. That means looking at whether they can understand the relevant information, retain it long enough to make the decision, use or weigh it as part of the decision-making process, and communicate their decision. Because of this, doctors are not always the best suited professionals for every capacity assessment. Some decisions are more closely linked to care, welfare, safeguarding, family relationships, finances, property, communication, or the person’s everyday circumstances. In those cases, a suitably qualified social worker or specialist mental capacity assessor may be better placed to complete the assessment. The better question is not: “Is the assessor a doctor?” The better question is: Does this assessor have the right experience for this specific decision? Mental capacity assessments should use the functional test first A good mental capacity assessment should not start with a diagnosis and then work backwards. The correct approach under the Mental Capacity Act is to look first at the person’s ability to make the specific decision. This is often described as the functional part of the test. The assessor should consider whether the person can: understand the information relevant to the decision retain that information long enough to make the decision use or weigh that information as part of the decision-making process communicate their decision by talking, signing, using gestures, assistive technology or any other means Only if the person cannot do one or more of these things does the assessor then consider whether that inability is because of an impairment of, or disturbance in the functioning of, the mind or brain. This distinction matters. Someone may have dementia, a brain injury, a learning disability, a mental health diagnosis or another condition and still be able to make a particular decision. A diagnosis alone does not prove that a person lacks capacity. Equally, someone may be unable to make one decision but able to make another. For example, they may be able to decide what they want to eat, but not be able to make a complex decision about selling a property or managing a large sum of money. This is why capacity assessments must be decision-specific, evidence-based and clearly reasoned. Can a social worker complete a mental capacity assessment? Yes. A social worker can complete a mental capacity assessment where they have the right training, knowledge and experience for the decision being assessed. Social workers often complete mental capacity assessments in relation to care, residence, safeguarding, contact with others, family circumstances, property and financial affairs, Court of Protection matters and deputyship applications. A social worker may be particularly well suited to capacity assessments because they usually look at the person in the context of their real life. They consider the person’s support network, risks, communication needs, wishes, relationships, environment and practical circumstances. This can be especially important where the decision is not purely medical. For example, a decision about where someone should live is not just about diagnosis. It may involve understanding the person’s care needs, safety, relationships, routines, housing options, risks and what support could help them make the decision. Similarly, a decision about managing finances may involve understanding the person’s actual money arrangements, bills, risks, debts, family pressures, vulnerability and ability to weigh consequences. Why experience in mental capacity assessments matters The quality of a mental capacity assessment depends heavily on the assessor’s experience. Professional title alone is not enough. An assessor needs to understand how to apply the Mental Capacity Act test properly, how to identify the specific decision, how to decide what information is relevant, and how to support the person to take part in the assessment. At Nellie Supports, completing mental capacity assessments is one of our team’s main roles. Our assessors regularly complete assessments across a wide range of decisions, including care, residence, finances, property, lasting power of attorney, COP3 forms, deputyship, litigation capacity and Court of Protection matters. That level of practical experience is important because capacity assessments are often nuanced. The assessor must avoid common mistakes such as relying only on diagnosis, assuming a person lacks capacity because they make an unwise decision, or writing a conclusion without explaining the reasoning. In some cases, a GP or doctor may know the person’s medical background well, but may not have the time, format or specialist capacity-assessment experience needed to produce a detailed decision-specific report. Medical evidence may still be useful, but it is not always the same as a full mental capacity assessment. Who can complete a COP3 form? A COP3 form is used in Court of Protection proceedings. It provides evidence about whether a person has capacity to make the decision or decisions in the application. A COP3 form does not have to be completed only by a doctor. The current COP3 form refers to an “appropriate assessor” and gives examples including medical practitioners and social care professionals. This is an important change in emphasis. It recognises that the right professional will depend on the decision being assessed and the expertise needed. For example, some COP3 assessments may involve property and financial affairs. Others may involve welfare, care, contact, residence, litigation or another Court of Protection issue. In some cases, a medical professional may be appropriate. In others, a social worker or specialist mental capacity assessor may be better suited. The assessor completing the COP3 should be able to explain their qualifications, training and practical experience. They should also be able to show that they understand the Mental Capacity Act 2005 and can apply the test properly. Why the assessor’s reasoning matters A mental capacity assessment should not simply state the final answer. A good report should explain how the assessor reached their conclusion. This is especially important where the assessment may be relied on by a solicitor, the Court of Protection, a financial institution, a public body, or family members who disagree. A clear assessment should explain: what decision was being assessed what information was relevant to that decision what support was given to help the person decide what the person said or demonstrated during the assessment whether the person could understand, retain, use or weigh the relevant information whether the person could communicate their decision whether any inability to decide was because of an impairment or disturbance in the functioning of the mind or brain Without this reasoning, a report may be too weak, too general or too unclear for the situation it is being used for. Common mistakes about who can assess capacity There are several common misunderstandings about mental capacity assessments. One is the belief that only a doctor can assess capacity. This is not correct in many situations. Another is the belief that a diagnosis automatically means the person lacks capacity. It does not. Capacity must be assessed in relation to the specific decision. A third mistake is assuming that an unwise decision means the person lacks capacity. People are allowed to make decisions that others disagree with. The key question is whether they can make the decision for themselves, not whether others think the decision is sensible. A further mistake is using someone who does not have enough experience in the type of decision being assessed. For complex, disputed or formal matters, the assessor’s experience can make a significant difference to the quality of the assessment. When might you need a specialist capacity assessor? A specialist capacity assessor may be needed where the decision is complex, disputed, high-value, urgent or likely to be scrutinised. This may include situations involving: Court of Protection applications COP3 forms deputyship property sale or transfer financial decisions lasting power of attorney wills or estate planning litigation capacity care or residence disputes safeguarding concerns family disagreement concerns about undue influence In these cases, the assessment often needs to do more than record a brief opinion. It needs to be structured, decision-specific and capable of being understood by others. So, who is the best person to complete a mental capacity assessment? The best person to complete a mental capacity assessment is the professional with the right expertise for the decision being assessed. Sometimes that will be a doctor. Sometimes it will be a social worker. Sometimes it will be another professional with specialist knowledge of the person’s communication, care, circumstances, risks or decision-making needs. For formal assessments, the assessor should understand the Mental Capacity Act 2005, be able to apply the functional test properly, and be able to explain their reasoning clearly. The key point is this: Mental capacity assessment is not about job title alone. It is about decision-specific expertise, proper application of the MCA test, and clear evidence-based reasoning. Need support with a mental capacity assessment? Nellie Supports provides independent, decision-specific mental capacity assessments for families, solicitors, deputies, attorneys and professionals. Our team regularly completes mental capacity assessments as a core part of our work. This gives us extensive practical experience in applying the Mental Capacity Act test across a wide range of decisions and preparing clear, structured reports for legal, financial, care and Court of Protection purposes. You can learn more about our mental capacity assessment services, or visit our COP3 mental capacity assessment page if the assessment is needed for the Court of Protection.

Mental Capacity Assessments are a cornerstone of ethical and lawful decision-making in health and social care. They are designed to empower individuals to make their own decisions wherever possible. However, when working with people who have experienced trauma, particularly survivors of abuse or long-term mental health challenges, the way we communicate during an assessment becomes just as important as the assessment itself. A trauma-informed approach ensures that we do not unintentionally replicate dynamics of powerlessness, coercion, or distress. Instead, we create psychological safety, enabling individuals to engage meaningfully in decisions about their lives. Why Trauma-Informed Language Matters in Mental Capacity Assessments Many individuals undergoing mental capacity assessments may have histories of: ● Domestic or institutional abuse ● Coercion or control ● Psychiatric treatment where autonomy felt limited ● Repeated experiences of not being believed or heard Traditional clinical or directive language can inadvertently trigger these experiences. Even well-intentioned questions may feel interrogative, overwhelming, or disempowering. Trauma-informed language shifts the focus from assessment being done to someone toward a collaborative process done with them. Core Principles of Trauma-Informed MCA Practice Drawing from trauma-informed care frameworks, four key principles should guide communication during a capacity assessment: 1. Safety (Psychological and Emotional) The individual should feel safe, not judged, and not under pressure. ● Avoid abrupt or overly clinical questioning ● Use calm, clear, and respectful language ● Check in regularly: “How are you finding this conversation?” 2. Choice and Control Where possible, restore a sense of autonomy. ● Offer choices about timing, setting, and pace ● Use phrases like:“Would you like to talk about this now, or take a break?” 3. Collaboration Position the person as an active participant, not a passive subject. ● Replace authoritative language with partnership-based phrasing ● Example: Instead of “I need to assess your capacity, ”say “I’d like us to explore this decision together so we can understand what support you might need.” 4. Trustworthiness and Transparency Be open about the purpose of the assessment and how information will be used. ● Explain clearly: “I’m asking these questions to understand how best to support you in making this decision.” Language: Practical Shifts in MCA Conversations Small changes in wording can significantly affect how safe and respected a person feels. Avoid: ● “Why can’t you...?” ● “You need to understand that...” ● “That’s not a rational decision” These can feel blaming, dismissive, or confrontational. Use instead: ● “Can you tell me what’s important to you about this decision?” ● “What are your thoughts about the options?” ● “Would it help if we went through this step by step together?” This type of language invites engagement rather than defensiveness. Supporting Understanding Without Overwhelming A key part of MCA is assessing understanding, retention, and the ability to weigh information. For trauma survivors, cognitive processing may be affected by anxiety, distress, or mistrust. Trauma-informed practice involves: ● Breaking information into manageable parts ● Using plain, non-technical language ● Allowing time for responses ● Repeating or rephrasing without frustration Importantly, difficulty engaging should not be immediately interpreted as lack of capacity, it may reflect emotional overwhelm. Managing Sensitive Topics Some MCA decisions involve deeply personal or potentially triggering topics (e.g., care arrangements, relationships, finances). When discussing sensitive issues: ● Signal the topic gently:“I’d like to talk about something that might feel a bit sensitive. Is that okay?” ● Give permission to pause:“We can stop at any time if this feels too much.” ● Validate emotional responses:“It makes sense this feels difficult to talk about.” This reduces the risk of re-traumatisation and supports continued participation. Power, Authority, and the MCA Process Professionals conducting MCAs hold significant authority. For individuals with trauma histories, this imbalance can mirror past experiences of control. Being mindful of this means: ● Sitting at eye level rather than standing over someone ● Avoiding rushed or pressured interactions ● Explicitly reinforcing the person’s rights under the Mental Capacity Act For example: “You have the right to make decisions that others might see as unwise, my role is just to understand how you’re making this decision.” Conclusion: MCA as an Opportunity for Empowerment When applied thoughtfully, a Mental Capacity Assessment can be more than a legal requirement; it can be an empowering, respectful conversation that supports autonomy. By using trauma-informed language, practitioners can: ● Reduce distress ● Build trust ● Improve engagement ● Support more accurate and ethical assessments Ultimately, the goal is not just to assess capacity, but to do so in a way that honours the individual’s dignity, experiences, and voice.

Gifts are not just a Christmas issue. They come up throughout the year: birthdays, weddings, religious celebrations, anniversaries, charitable donations, inheritance planning, property transfers, financial support for family members, and sentimental gifts made during a person’s lifetime. Sometimes the gift is small and familiar. Sometimes it is substantial: money, jewellery, a vehicle, a share in a property, or even the person’s home. That is when the question becomes more serious: Does the person have the mental capacity to make this specific gift, at this specific time? At Nellie Supports, we provide decision-specific mental capacity assessments for families, solicitors, attorneys, deputies and professionals who need clear, evidence-based answers before important financial or legal decisions are made. What Is Capacity to Make a Gift? Capacity to make a gift means the person can understand the nature and effect of giving something away. This is not about whether other people agree with the gift. It is not about whether the gift seems generous, unusual or unwise. A person is allowed to make a decision that others consider unwise, provided they have capacity to make that decision. The real question is whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. The Mental Capacity Act 2005 framework is decision-specific, which means a person may have capacity for one decision but not another. Nellie Supports explains this wider framework in our Mental Capacity Act 2005 guide. For gifting decisions, the relevant information usually includes: what the gift is the approximate value of the gift who will receive it why the person wants to make the gift whether the gift is affordable how the gift may affect their own future needs how the gift may affect their estate whether other people might reasonably expect to benefit from their estate whether there is any pressure, coercion or undue influence The larger or more unusual the gift, the more careful the assessment needs to be. Why the Size and Nature of the Gift Matters The leading authority on capacity to make lifetime gifts is Re Beaney [1978]. The key principle is that the level of understanding required depends on the size and nature of the gift in the context of the person’s overall assets. The Law Society summarises the position clearly: a small or trivial gift may require a lower degree of understanding, but where the gift disposes of the donor’s only valuable asset or affects how their estate will pass, the person may need a level of understanding similar to that required for making a will. That means there is a major difference between: giving a grandchild £50 for a birthday donating a familiar modest amount to a charity gifting jewellery of sentimental but modest value transferring £20,000 to one child giving away a share of a house transferring the person’s main home making gifts that significantly change inheritance expectations A small customary gift may be straightforward. A large lifetime gift may need a formal capacity assessment and legal advice. Can Someone With Dementia Still Make a Gift? Yes, sometimes. A diagnosis of dementia, acquired brain injury, learning disability, mental illness or cognitive impairment does not automatically mean a person lacks capacity to make a gift. Capacity is not decided by diagnosis alone. It is decided by looking at whether the person can make the particular decision in question. For example, someone may not be able to manage all their finances independently but may still understand a simple, affordable gift to a close family member. Equally, someone may appear socially confident but be unable to understand the consequences of transferring a large sum of money or giving away property. That is why gifting capacity should be assessed in the real-world context of the proposed gift. Where the wider issue is whether the person can manage money, bank accounts, bills or broader financial affairs, a mental capacity assessment to manage finances may also be relevant. Gifts Made by Attorneys or Deputies There is an important distinction between: a person making their own gift, and an attorney or deputy making a gift on that person’s behalf. If the person has capacity to make the gifting decision, they should usually make the decision themselves. If the person lacks capacity, an attorney or deputy may only make gifts within strict limits. Current Office of the Public Guardian guidance says deputies and attorneys have limited powers to make gifts, and that gifts must be reasonable, affordable and in the person’s best interests. The guidance also says the person’s capacity to understand the gifting decision should be considered before a gift is made. For attorneys acting under a property and financial affairs LPA, gifts are generally limited to customary occasions, to people connected with the person or charities they supported or might have supported, and must be reasonable in value considering the size of the person’s estate. Examples of customary occasions can include birthdays, weddings, civil partnerships, Christmas, Eid, Diwali, Hanukkah and Chinese New Year. So yes, Christmas gifting can still sit inside this blog — but as one example of a wider legal issue, not as the whole focus. When a Gift May Need Court of Protection Approval Some gifts go beyond what an attorney or deputy can safely authorise. The Office of the Public Guardian states that any gift or transfer of real property, including land, a house or a share in a property, is almost certainly outside the powers of a deputy or attorney and is likely to require Court of Protection permission. Court approval may also be needed where: the gift is large compared with the person’s estate the gift affects inheritance expectations the gift benefits the attorney, deputy or their family there is a conflict of interest the gift is part of tax planning the gift involves property the person has high care costs or likely future care needs there are safeguarding concerns family members disagree about whether the gift is appropriate Where a Court of Protection application is being considered, a COP3 mental capacity assessment may be needed to provide clear, decision-specific evidence. Where the proposed gift overlaps with estate planning or a statutory will application, our Statutory Will Assessment Package may also be relevant. Capacity to Gift Property Property gifts require particular care. A gift of property may include: transferring a house to a family member gifting a share in a jointly owned property selling a property for less than market value transferring land gifting sale proceeds after a property sale changing ownership arrangements for inheritance or tax reasons These decisions can significantly affect the person’s estate, care funding position, future security and the expectations of beneficiaries. Where the proposed gift involves a home, land or ownership interest, a mental capacity assessment to buy, sell or transfer property may be appropriate. Nellie Supports’ property capacity service expressly covers property decisions including gifting an interest in property. Capacity, Gifts and Lasting Power of Attorney Gifting concerns often arise in LPA cases. Sometimes a person wants to make a Lasting Power of Attorney and also express preferences about gifts, family support or charitable donations. Sometimes an attorney is already acting and wants to know whether they can continue the person’s usual pattern of gifting. It is important to understand that an LPA cannot simply give attorneys unlimited gifting powers. The Office of the Public Guardian guidance explains that preferences and instructions in an LPA must be read in the context of the Mental Capacity Act. A person making an LPA can restrict an attorney’s powers, but cannot expand gifting powers beyond what the law allows. If there is uncertainty about whether someone can make an LPA, Nellie Supports provides mental capacity assessments to grant a Lasting Power of Attorney. Warning Signs That a Gift Needs a Capacity Assessment A formal capacity assessment should be considered where: the person has dementia, brain injury, delirium, mental illness or cognitive impairment the gift is unusually large the gift is out of character the gift favours one person over others without clear explanation the person appears confused about the value of the gift the person does not understand the effect on their own finances the gift may affect care fees or future care planning the proposed recipient has been heavily involved in arranging the gift family members are in dispute there are concerns about undue influence, pressure or coercion the gift may later be challenged after the person’s death Where the matter is complex, disputed or high value, an Enhanced Mental Capacity Assessment may be more appropriate than a standard assessment because it allows for deeper evidential analysis, safeguarding consideration and a more robust report. What Does a Capacity to Make Gifts Assessment Consider? A good gifting capacity assessment should not simply ask, “Do you want to give this gift?” It should explore whether the person understands the decision properly. This may include assessing whether they understand: what they own what they are giving away the approximate value of the gift whether the gift can be reversed who will benefit who may lose out the effect on their future care and living costs the effect on their estate whether they have made similar gifts before whether anyone is pressuring them whether the decision is consistent with their wishes, feelings, values and previous behaviour A mental capacity assessor should also consider what support the person needs to take part in the assessment. This might include simplified explanations, adjusted timing, communication support, visual information, family context or solicitor input where appropriate. What If the Gift Has Already Been Made? Sometimes concerns only arise after the gift has already happened. This might be after a large bank transfer, a property transfer, a change in ownership, or after the person has died and beneficiaries discover that substantial assets were given away during their lifetime. In those cases, the question may become: Did the person have capacity to make the gift at the time it was made? That is a retrospective question. Nellie Supports provides Retrospective Mental Capacity Assessments for disputed past decisions. These reports reconstruct the person’s decision-making ability using contemporaneous evidence such as medical records, care notes, solicitor files, correspondence, bank records and witness evidence. This can be particularly important in probate disputes, financial abuse investigations, contested estates and challenges to lifetime gifts. Capacity to Gift and Testamentary Capacity Large lifetime gifts can overlap with inheritance issues. If a person gives away a major asset during their lifetime, that gift may alter what is left in their estate. It may also affect people who expected to benefit under a will or intestacy. That is why Re Beaney is so important. Where the gift effectively changes the destination of the person’s estate, the level of understanding required may become closer to the understanding needed to make a will. For more detail on the will-making test, Nellie Supports has a guide to Banks v Goodfellow, the leading authority on testamentary capacity. Why Capacity to Make Gifts Matters Gifts can be meaningful. They can preserve relationships, reflect a person’s values, and allow someone to continue patterns of generosity that have mattered to them throughout life. But gifts can also create risk. Without proper capacity evidence, a gift may later be challenged. Families may disagree. Attorneys and deputies may be criticised for acting outside their authority. Solicitors may need clearer evidence before completing a transaction. Vulnerable people may be exposed to financial abuse or undue pressure. A clear assessment can help protect: the person making the gift the intended recipient attorneys and deputies solicitors and professionals involved the person’s estate family relationships future legal proceedings The aim is not to stop people making gifts. The aim is to make sure the person’s decision is properly understood, properly supported and properly evidenced. Need a Capacity Assessment for a Proposed Gift? If you are unsure whether a loved one, client or protected party can make a gift, the safest step is to get advice before the gift is made. Nellie Supports provides independent, decision-specific capacity assessments across England and Wales. Our reports are evidence-based, court-ready where required, and completed by experienced professionals working within clear professional standards and court credentials. You can contact Nellie Supports to discuss whether a gifting capacity assessment, financial capacity assessment, property capacity assessment, retrospective report or enhanced capacity assessment is the right route. For more background reading, visit our Guides and Resource Directory.

Re ACC & Others [2020] EWCOP 9 is now essential reading for property and affairs deputies. It changed the way deputies must think about the limits of their authority, particularly where legal services, contentious steps, conflicts of interest and public funding challenges are involved. For professional deputies, one of the most important practical consequences is the impact on NHS Continuing Healthcare, often shortened to CHC. A deputy may be able to apply for CHC funding on behalf of P. A deputy may also be able to take steps to prepare for, attend and participate in the assessment process. But where a CHC decision is refused and the next step is to challenge that decision, Re ACC draws a line. The Office of the Public Guardian’s current guidance states that general authority to manage P’s funds includes steps up to, but not including, the delivery of a letter of appeal in respect of a decision that P is not eligible for continuing healthcare funding. It also confirms that a deputy may make an application for CHC funding because this is a financial issue. That distinction matters. It means deputies need to think carefully about authority before moving from CHC application and assessment preparation into local resolution, appeal or review activity. Why Re ACC Matters for CHC Funding Cases The difficulty is that CHC does not feel like ordinary litigation. A CHC challenge is not a court claim in the usual sense. It is not issued in the County Court. It does not require a litigation friend in the same way civil litigation would. It is an NHS review process concerned with whether the person has a primary health need and whether the eligibility decision has properly applied the National Framework. The National Framework itself says that individuals do not need legal representation during the CHC eligibility process and describes the process as focused on assessing needs under the Framework, rather than being a legal or adversarial process. That is why Re ACC has caused understandable concern among deputies. On one view, challenging a CHC refusal is simply part of protecting P’s financial position. If P is eligible for CHC, the NHS is responsible for arranging and funding the package of care. That can make a major difference to P’s estate, future care planning and financial security. But the Re ACC position means the deputy must still ask a separate question: Do I have authority to take this next step, or do I need specific authority from the Court of Protection before challenging the decision? What Deputies Can Usually Do Without Further Court Authority In most cases, a property and affairs deputy can take sensible preparatory steps to ensure that CHC is properly considered. This may include: identifying that P may be eligible for CHC requesting that CHC eligibility is considered gathering care records, health evidence and relevant financial information ensuring that P is represented at the assessment stage instructing appropriate professional support for the assessment, where this is within the deputy’s authority and proportionate attending or arranging representation at the Decision Support Tool meeting reviewing the outcome of the assessment and taking advice on whether the decision appears sound The current CHC pathway usually begins with a Checklist and, where the threshold is met, proceeds to a multidisciplinary assessment using the Decision Support Tool. Nellie Supports also explains the full route through the NHS Continuing Healthcare process, including Checklist, DST, decision letter, local resolution, Independent Review Panel and Ombudsman stages. That early stage is where deputies can add real value. A properly prepared DST meeting can reduce the risk of an inaccurate decision. It can ensure that key evidence is available, that care needs are described clearly, and that the domains are not considered in isolation from the nature, intensity, complexity and unpredictability of P’s needs. Where the Line Is Drawn The risk point comes after a negative eligibility decision. If the ICB refuses CHC funding and P or their representative wishes to challenge that decision, the first formal stage is usually local resolution. The National Framework says that where an individual or their representative asks the ICB to review the eligibility decision, this should be dealt with through the local resolution procedure. All ICBs must have a CHC local resolution process that is fair, transparent and includes timescales. For deputies, the issue is not whether the CHC process allows a representative. It does. The issue is whether the property and affairs deputy has authority to take the step that begins the challenge. Under Re ACC and the OPG guidance, deputies should not assume that general authority permits them to launch the appeal or review process. Specific Court of Protection authority may be required before sending the appeal letter or taking further contentious steps. Where a deputy is considering challenge after a refusal, a fixed-fee CHC appeal viability review can help clarify whether the decision appears challengeable before further cost is incurred. Why This Creates Practical Problems for Deputies This can be difficult in real cases. CHC decisions often arrive at a time when care costs are already significant. P may be paying privately for a care home or complex package of support. The deputy may believe that the decision is wrong, that key evidence has been overlooked, or that the DST did not properly reflect the severity of P’s needs. But applying to the Court of Protection for authority takes time and adds cost. That creates tension where there are review deadlines, ongoing care fees and a potential loss to P’s estate if the funding decision is not challenged. For professional deputies, the practical message is clear: Do as much high-quality work as possible before the decision is made. The better the assessment preparation, the lower the risk of needing to challenge a poor decision later. The Best Strategy: Get the DST Right First Time A CHC appeal can sometimes be avoided by making sure the assessment stage is handled properly. That means deputies should consider arranging experienced DST attendance and representation before the meeting, not only after funding has been refused. At the DST stage, a knowledgeable representative can help ensure that: the meeting is properly prepared relevant records are available the correct care domains are explored the evidence reflects P’s actual presentation, not just what is written in a care plan needs are considered in combination, not artificially separated the primary health need test is properly addressed disagreements are recorded clearly procedural concerns are documented at the time This does not guarantee eligibility. Nothing can. But it does mean that the case has been properly presented before the ICB makes its decision. If CHC is awarded, the cost and delay of a challenge may be avoided. If CHC is refused, the deputy is in a stronger position to decide whether an application to the Court of Protection for authority to challenge is justified. When a CHC Decision Should Be Reviewed A negative CHC decision should not be challenged simply because the outcome is disappointing. A review may be worth considering where there are clear concerns such as: the DST domains do not reflect the evidence care records were not properly considered the MDT did not consider the interaction between needs the primary health need analysis is weak or missing the decision focuses too heavily on diagnosis rather than needs family or professional evidence was ignored the written rationale does not explain how the conclusion was reached the process did not follow the National Framework there are clear gaps between the evidence and the eligibility decision This is where an independent professional review can be useful. Before a deputy seeks Court of Protection authority to challenge a CHC refusal, they should be able to explain why the challenge is in P’s best interests, what the issue is, what the potential financial benefit may be, and why the proposed work is proportionate. Where the matter has already reached the first formal challenge stage, deputies may need support with local resolution CHC appeal preparation, including written grounds, evidence structure and representation. Court of Protection Authority and Proportionality Re ACC also reminds deputies that they must consider the limits of their authority and act carefully where proposed work falls outside the deputyship order. For professional deputies, this means the decision to pursue a CHC challenge should be properly documented. A deputy should usually consider: the wording of the deputyship order the value of the potential CHC funding the strength of the challenge the cost of obtaining advice or representation whether urgent action is needed whether another person is better placed to act whether Court of Protection authority is required whether any conflict of interest arises how the decision will be explained in the deputyship annual report This sits alongside the wider Mental Capacity Act framework. Nellie Supports has a detailed guide to the Mental Capacity Act 2005, including decision-specific capacity, best interests and the legal structure that underpins Court of Protection work. Where a deputyship application or Court of Protection evidence is also needed, deputies and solicitors may also need a COP3 mental capacity assessment prepared for the specific decision before the court. What Deputies Should Do Going Forward The safest approach is to build CHC consideration into the deputyship file early. Do not wait until care costs have been paid for months or years before asking whether P might qualify for NHS Continuing Healthcare. Do not assume that a negative decision is correct. But equally, do not assume that a property and affairs deputy can move straight into an appeal without checking authority. A robust deputyship approach should include: early screening for possible CHC eligibility prompt request for assessment where appropriate proper preparation before the DST meeting professional representation where the facts justify it careful review of any negative decision clear advice on whether there are grounds to challenge documented best interests reasoning Court of Protection authority where required before appeal steps are taken This is not about creating unnecessary process. It is about protecting P, protecting the deputy and making sure public funding issues are handled lawfully, proportionately and at the right stage. How Nellie Supports Can Help Nellie Supports provides specialist CHC support for deputies, solicitors, attorneys and families. Our expert team, is experienced in supporting individuals through the CHC assessment process, including DST preparation, representation and review of CHC decisions. We can assist with: CHC Assessment Preparation We help deputies identify whether CHC should be considered, what evidence is needed, and how P’s needs should be presented before the assessment takes place. Where the case is at an early stage, our CHC Checklist request and advocacy letter service can help ensure the request is properly framed from the outset. DST Meeting Representation We can represent P’s interests at the full CHC assessment, helping to ensure the meeting is thorough, properly evidenced and focused on the correct eligibility test. Review of Negative CHC Decisions Where funding has been refused, we can review the decision and advise whether the outcome appears properly reasoned, evidence-based and compliant with the National Framework. Evidence for Court of Protection Applications Where a challenge may be appropriate, we can provide supporting analysis to assist deputies and their legal advisers when considering whether to seek Court of Protection authority to proceed. Retrospective CHC Funding Support Where the issue relates to past care fees, we can also advise on retrospective CHC funding appeals, including whether there may be grounds to recover care fees paid during a period when CHC should have been considered. Speak to Nellie Supports If you are a deputy dealing with a possible CHC case, the best time to act is before the process goes wrong. Early preparation can reduce the risk of an inaccurate decision, avoid unnecessary appeal costs and help ensure P’s needs are properly evidenced from the outset. Nellie Supports is an independent practice with published professional standards and credentials, providing structured support across CHC, mental capacity and Court of Protection-related work. Book a free, no-obligation call with Nellie Supports to discuss CHC assessment support, DST representation or review of a refused funding decision.

If you have ever opened an Education, Health and Care Plan and found phrases like “support as required,” “access to support,” “opportunities for,” or “where appropriate,” you already know the problem. Vague wording sounds helpful. In real life, it can leave your child without clear provision, leave school unsure what must happen, and leave you stuck chasing answers that should have been written into the plan from the start. That is why we built Little Nellies. Little Nellies is the parent-facing SEND support brand from Nellie Supports. We help families cut through EHCP jargon, challenge weak wording, organise evidence, and move through the SEND process with more confidence — from the first refusal letter through to mediation and SEND Tribunal preparation. No waffle. No legal fog. No “we’ll see how it goes.” Your child’s support should be clear, specific, and written down properly. Who Little Nellies Is For Little Nellies is for parents and carers who feel like they have been handed a process instead of proper support. You might be: staring at a refusal to assess letter and wondering what to do next reading a draft EHCP that describes your child beautifully but does not secure the support they need dealing with vague provision that says who might help, but not what they will do, how often, or for how long preparing for mediation and unsure what evidence matters facing a SEND Tribunal appeal and feeling overwhelmed by paperwork, deadlines, and council language We help you understand the stage you are at, what the documents actually say, what is missing, and what needs to happen next. What We Do Little Nellies gives parents practical, plain-English EHCP support at the points where families often feel most stuck. Refusal to Assess Support If the local authority has refused to carry out an EHC needs assessment, we help you understand the refusal, identify evidence gaps, and prepare a stronger challenge. We focus on the key question: what evidence shows that your child may need support through an EHCP? Draft EHCP Reviews A draft EHCP should not be full of soft promises. It should clearly set out your child’s needs, outcomes, and provision. We review draft plans line by line and look for: vague language missing needs weak or unsupported outcomes provision that is not specific, quantified, or enforceable gaps between professional evidence and what the plan actually includes wording that leaves too much room for delay or disagreement If the plan says “support as required,” we ask: support from whom, doing what, how often, for how long, and where is that written? Evidence Packs EHCP decisions often turn on evidence. Parents may have reports, school emails, appointment letters, behaviour logs, professional recommendations, and their own lived experience — but no clear structure. We help organise evidence into a focused pack that shows: what your child needs what has already been tried what is not working what professionals recommend where the EHCP or local authority decision falls short Mediation Preparation Mediation can feel intimidating, especially when you are expected to discuss your child’s needs with professionals who use formal language every day. We help you prepare your key points, questions, evidence, and priorities before the meeting so you know what you are asking for and why. SEND Tribunal Support When an appeal reaches SEND Tribunal, the paperwork can become heavy very quickly. Our tribunal support can include help with appeal preparation, evidence organisation, working documents, bundle checks, written arguments, and advocacy through the package you choose. The aim is simple: help you present your child’s case clearly, calmly, and with evidence behind every point. Our Services Draft EHCP Review A professional review of your child’s draft EHCP, highlighting vague wording, missing detail, weak provision, and areas that need strengthening before the plan is finalised. Evidence Pack Build Support to organise your documents into a clear, structured evidence pack that connects your child’s needs to the provision being requested. Tribunal Preparation and Advocacy Practical support with tribunal paperwork, working documents, evidence, bundle preparation, and representation where this is included in your chosen package. Why the Punk Edge? Because SEND parents do not need another beige leaflet. You need clear language, honest feedback, and someone willing to say: This wording is too vague.This provision is not clear enough.This plan does not yet say what your child needs.Here is how we strengthen it. The Little Nellies style is bold for a reason. The black-and-hot-pink look, the direct language, and the no-fluff tone all point to the same belief: Parents should not need a law degree to understand their child’s EHCP. Why Families Trust Little Nellies Families come to Little Nellies because we combine professional SEND knowledge with plain-English support. We are: qualified and experienced — backed by the professional expertise of Nellie Supports specific — we do not hide behind vague language practical — we give parents tools they can actually use clear on costs — fixed-fee options, no nasty surprises evidence-led — we focus on what the documents show, what is missing, and what needs strengthening parent-first — we know this is not just paperwork; it is your child’s support, education, and future We do not promise magic. We do not guarantee outcomes. We do promise clear, careful, robust work that helps you understand the process and challenge weak EHCP decisions with more confidence. What “Good” EHCP Wording Looks Like A strong EHCP should not leave everyone guessing. Instead of: “Support will be provided as required.” A stronger plan should explain: who will provide the support what type of support will be delivered how often it will happen how long each session or intervention will last where the support will take place how progress will be reviewed what specialist input is needed Specific wording matters because vague wording can become vague provision. And vague provision is not good enough for your child. Ready to Get Your Child’s EHCP Properly Checked? Bring us the letter, draft plan, tribunal notice, or bundle that is keeping you awake. We will help you understand what stage you are at, what looks weak, and what support would make the biggest difference. Book your free 15-minute call and speak to someone who gets it.

Before a mental capacity assessment takes place, the person being assessed should understand, as far as possible, what the assessment is about and why it is being carried out. That may sound straightforward, but in practice it is one of the most important parts of a lawful, fair and reliable assessment. A capacity assessment is not simply a conversation in which an assessor gathers answers. It is a structured process that may affect legal, financial, welfare or court-related decisions. The person should therefore be given a genuine opportunity to understand the purpose of that process before conclusions are drawn. Explaining the purpose of the assessment is not just a matter of professional courtesy. It supports transparency, respects the person’s autonomy, and helps ensure that any conclusion about capacity is based on the person’s actual decision-making ability, rather than confusion about why they are being asked questions. Why the purpose of the assessment matters Mental capacity is decision-specific. This means the question is not whether a person has capacity in general, but whether they can make a particular decision at the relevant time. For that reason, the person being assessed needs to know what decision is being considered. For example, an assessment might relate to managing finances, making a will, granting a lasting power of attorney, deciding where to live, consenting to care arrangements, or taking part in legal proceedings. Those are very different decisions. Each one involves different information, different consequences and different risks. If the person does not understand what decision is being assessed, their answers may not reliably show whether they can understand, retain, use or weigh the relevant information. In simple terms, the person should not be left guessing why the assessor is there. The Calderdale point: transparency is part of reliability The importance of explaining the purpose of an assessment has been highlighted in case law, including Calderdale Metropolitan Borough Council v LS & Anor. The practical point is clear: if a person is not told what an assessment is actually about, the reliability of the assessment may be called into question. A person’s responses may be affected by anxiety, confusion, mistrust or misunderstanding. They may think the assessor is there for a different reason. They may answer cautiously, defensively or inconsistently because they do not understand the context. That does not mean every explanation must be lengthy or technical. In many cases, a short and accessible explanation will be more appropriate. What matters is that the assessor makes a proper attempt to explain the purpose in a way the person can understand. For example, instead of saying: “I am here to conduct a Mental Capacity Act assessment in relation to your property and affairs.” An assessor might say: “I’m here to talk with you about whether you feel able to make decisions about your money, bills and property at the moment. I’ll ask some questions to understand what you know, what choices you have, and what you think about those choices.” The second version is more likely to be meaningful to the person. It explains the purpose without relying on legal language. Explaining the assessment is part of supporting decision-making Under the Mental Capacity Act 2005, a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success. Explaining the purpose of the assessment sits naturally within that principle. It helps the person understand what is happening, why the decision matters, and what information they are being asked to consider. This is particularly important where the person has dementia, acquired brain injury, a learning disability, mental illness, delirium, communication difficulties or another condition that may affect how they process information. A person may struggle with a question not because they lack capacity, but because the question has been put too quickly, too abstractly or without enough context. A good assessment should reduce those barriers wherever possible. That may involve: using plain language avoiding legal or professional jargon breaking information into smaller parts checking whether the person understands why the conversation is taking place allowing extra time using visual aids or written prompts where helpful choosing a familiar or calm environment involving communication support where appropriate The aim is not to coach the person into a particular answer. It is to give them a fair opportunity to engage with the decision. Communication should be adapted to the person Capacity assessments often involve complex information. The assessor may need to explore options, consequences, risks, benefits, legal documents, care arrangements or financial circumstances. However, the information should be presented in a way the person can realistically understand. An assessment that relies on technical wording may test the person’s ability to understand jargon, rather than their ability to make the actual decision. Good communication means adapting the explanation to the person, not expecting the person to adapt to the assessor. For example, where someone is anxious, the assessor may need to begin with reassurance and a clear explanation of their role. Where someone has memory difficulties, the assessor may need to repeat key points and check understanding more than once. Where someone has communication difficulties, the assessor may need to use alternative methods, such as written information, pictures, communication aids, interpreters or support from someone who understands the person’s communication style. The assessment should focus on whether the person can make the decision with appropriate support, not whether they can manage unsupported in an artificial or unfamiliar setting. The environment can affect understanding The setting of the assessment can make a significant difference. A noisy, unfamiliar or pressured environment may increase confusion and reduce the person’s ability to engage. A quieter and more familiar setting may help the person concentrate and respond more clearly. For some people, the timing of the assessment is also important. A person may be more alert in the morning, more fatigued later in the day, or affected by medication, pain, distress or recent events. These practical details matter because capacity is assessed at the time the decision needs to be made. If the person’s presentation fluctuates, the assessor should consider whether the timing and setting of the assessment give a fair picture of their decision-making ability. This does not mean assessments must always take place in perfect conditions. That is rarely possible. But the assessor should think carefully about barriers to engagement and record what steps were taken to reduce them. Checking understanding without turning the assessment into an exam Explaining the purpose of the assessment is only the first step. The assessor also needs to consider whether the person has understood that explanation. This does not have to be done formally or harshly. It can be approached naturally within the conversation. For example, the assessor might ask: “Can you tell me, in your own words, what you understand we are talking about today?” Or: “What do you think the main decision is that we are discussing?” This helps the assessor understand whether the person has grasped the purpose of the conversation. It also gives the person an opportunity to correct any misunderstanding. The tone is important. The assessment should not feel like an interrogation. A person-centred approach, using empathy, patience and active listening, will usually produce better evidence than a rigid checklist. What should be recorded in the assessment report? A strong capacity report should not simply state that the purpose was explained. It should briefly record how it was explained and how the person responded. For example, the report might include: “I explained to Mrs A that the purpose of the assessment was to consider whether she could make her own decision about managing her property and financial affairs. I explained this in plain language, referring to her bank account, household bills, savings and property. Mrs A was able to tell me that she understood I was there to discuss whether she could manage these decisions herself or whether someone else may need legal authority to assist.” Or, where the person did not understand: “I explained the purpose of the assessment in simple terms and repeated the explanation using examples relating to Mr B’s care arrangements. Mr B was unable to describe why the assessment was taking place and repeatedly stated that I was there to arrange a hospital appointment. Further attempts were made to reframe the explanation, but he remained unable to understand the purpose of the discussion.” This kind of recording is useful because it shows the assessor has considered transparency, communication and support. It also helps demonstrate that the assessment was not a tick-box exercise. Can AI help explain capacity assessments? Artificial intelligence may have a limited supporting role in this area, particularly where professionals need to convert complex information into simpler language. For example, AI may help draft a plain-language explanation of a decision, summarise options in accessible wording, or produce a short written prompt that can be adapted for the person being assessed. However, AI should not replace professional judgement. It should not decide whether someone has capacity, interpret the person’s answers in isolation, or be used without careful review. Any wording generated by AI must be checked by the assessor to ensure it is accurate, appropriate and tailored to the person’s circumstances. Used carefully, AI may assist communication. Used carelessly, it may introduce errors, oversimplify important information or create a false impression that the person has been properly supported. The key point remains the same: the assessor is responsible for ensuring the person receives the relevant information in a way that is accessible and meaningful. Why this matters for families, solicitors and professionals Families, solicitors and professionals often focus on the final outcome of a capacity assessment: does the person have capacity or not? But the process matters just as much as the conclusion. If the purpose of the assessment has not been explained, or if the explanation has not been adapted to the person’s needs, the assessment may be vulnerable to challenge. It may be unclear whether the person truly could not make the decision, or whether they were not properly supported to understand what was being asked of them. A robust assessment should show: what decision was being assessed how the purpose of the assessment was explained what relevant information was provided what steps were taken to support understanding how the person responded how the assessor reached their conclusion This is especially important in court-related assessments, disputed family situations, property and financial matters, and cases where the person’s presentation is borderline or fluctuating. Conclusion Explaining the purpose of a mental capacity assessment is a fundamental part of good practice. It protects the person’s right to participate, supports the Mental Capacity Act principle of taking practicable steps, and improves the reliability of the assessment itself. It also helps ensure that the assessor is testing the person’s decision-making ability, not their ability to work out why unfamiliar questions are being asked. A clear explanation does not need to be complicated. It should be honest, accessible and tailored to the person. The assessor should then check understanding, adapt communication where needed, and record what was done. A capacity assessment is strongest when the person has been given a genuine opportunity to understand the process and take part in the assessment making it both robust and defensible. Need a decision-specific mental capacity assessment? Nellie Supports provides independent, decision-specific mental capacity assessments for families, solicitors and professionals across England and Wales.

During a recent training session our team engaged in an interesting discussion surrounding how we as professionals balance this very tension within our practice. As Mental Capacity Assessors , we are tasked with producing assessments that are robust, evidence-based , and able to withstand scrutiny whilst at the same time, being bound by the principles of the Mental Capacity Act (2005) to remain person-centred, supportive, and least restrictive. In practice, this creates a familiar tension: How do we ensure an assessment is sufficiently thorough and defensible, whilst also recognising when continuing to question an individual may cause distress or overwhelm? This question is a well recognised ethical and theoretical challenge within social work and capacity law. Research into practitioners’ experiences consistently highlights this issue. Social workers often describe capacity assessments as navigating a “grey area” between thoroughness and emotional impact. While there is understandable pressure to produce assessments that will stand up in court , there is also a strong awareness that: ● repeated or persistent questioning can cause distress or fatigue, ● emotional overwhelm may undermine the reliability of responses, ● and the assessment process itself can risk becoming intrusive or coercive. Capacity assessments involve professional judgement , interpretation, and relational engagement particularly when applying the “ use or weigh ” element of the functional test. The Mental Capacity Act itself embeds this tension. On one hand, it requires clear evidence of the functional test of capacity alongside transparent reasoning that can be scrutinised whilst at the same time demanding a presumption of capacity, active steps to support decision-making and a commitment to the least restrictive option. NICE guidance reinforces that assessments must be “structured, person-centred, empowering and proportionate.” Importantly, the law does not require us to pursue questioning at all costs. Instead, it expects us to act reasonably and proportionately, while maximising the person’s ability to engage. So this begs the question: what do we do when continuing an assessment risks overwhelming or distressing the person but stopping might feel like we haven’t done enough? It is important to recognise here that this isn’t just personal uncertainty. It’s something that has been widely recognised and researched in law and social work theory. In other words, if you ever feel like this it is important to know you are not alone. So what should we do when someone becomes overwhelmed? One of the most helpful ideas from recent research is the social model of mental capacity which suggests that capacity is not just something inside a person but that it is also hugely affected by their environment, relationships and emotional state. For instance, a calm, supported person may be able to weigh information but the same person, should they become overwhelmed, may no longer be able to weigh that same information. From this perspective, if someone becomes distressed during an assessment, it is not separate from capacity but in fact part of the evidence about how they are functioning in that moment. Research also shows that good capacity assessments rely heavily on things such as trust, communication and understanding, linking closely to relational practice. These approaches tell us that how we carry out an assessment is just as important as what we ask. For instance, if a person does become overwhelmed they may agree to end the conversation, disengage, or their answers may no longer reflect their true thinking. This would mean that continuing to question them could actually lead to the assessment being less reliable, not more. The Mental Capacity Act requires us to take “all practicable steps” to support someone to make their own decision. Support might include: slowing the pace, using simpler language, taking breaks or involving someone the person trusts. Being able to document the support provided serves to strengthen your assessment by providing evidence that you have followed the law. If someone becomes distressed, a strong and defensible response is to recognise that their ability to engage is affected, consider whether continuing would reduce the reliability of responses, adjust your approach (e.g. slow down, pause, simplify) and clearly document what happened and why. This shows you are applying both the functional test of capacity and the principles of the MCA. My final thoughts: Ultimately, the idea that we must choose between being person-centred and being legally robust is misleading. The evidence suggests something more nuanced in that capacity assessments are most defensible when it is relationally informed, ethically grounded, and context-aware. In practice this means, recognising distress as part of the assessment, supporting the person to engage , knowing when to pause/ take breaks and clearly evidencing your reasoning. Ultimately, person-centred practice is not a barrier to defensibility, it is part of what makes an assessment valid, reliable, and lawful. If you need a mental capacity assessment that is both person-centred and able to withstand legal scrutiny, our team provides mental capacity assessment service s  designed for families, solicitors and professionals. We specialise in expert capacity assessments for court or legal use , ensuring clear reasoning, structured evidence, and reports that are robust under challenge. Abbie Cripwell Social Worker and Expert mental capacity assessor