Legal instructions · England and Wales
Capacity to instruct a solicitor
Does the person have the mental capacity to instruct a solicitor about this particular matter?
A solicitor needs instructions that reflect their client’s own decisions. We assess whether the person can understand the particular legal matter, consider the advice available and communicate what they want the solicitor to do. The report explains the evidence behind our opinion.
The assessment is about the particular legal matter, not a general judgement about whether the person can deal with solicitors. We work from the proposed instructions and relevant documents, then provide a written report explaining our opinion.
Assessments for families and professional referrers across England and Wales.
When the firm needs a clearer answer
The concern may be a change in instructions, difficulty understanding advice or someone else speaking for the client. We need to identify the legal work involved. Giving instructions about a transaction and conducting proceedings are different questions, so any litigation requirements should be made clear before booking.
Whose instructions are they?
We explore what the person wants and their understanding of the matter. Information from relatives can be useful, but it is not a substitute for establishing the client’s own wishes. Tell us about any concerns that someone is applying pressure or controlling access to advice.
What is the solicitor being asked to do?
An instruction about a straightforward matter can involve different information from a complex dispute. We need the relevant documents and a clear explanation from the firm of the advice sought, the choices involved and the intended use of the report.
What does the assessment cover?
We begin with the presumption of capacity and support the person to make the decision. We first consider whether they can understand, retain, use or weigh the relevant information and communicate their instructions. If they cannot, we examine whether that inability is caused by an impairment of, or disturbance in, the functioning of the mind or brain.
Understanding with support
The person does not need to understand the law as a solicitor would. We consider the explanation and assistance available, including accessible written advice, communication aids and time to ask questions. The question is what the person can decide with that support.
Disagreeing with advice
A client who chooses not to follow advice does not necessarily lack capacity. The assessor explores how they understand and weigh the relevant information, rather than judging whether their choice is sensible.
What goes into the report
The report identifies the matter, records reviewed, information explained and support provided. It sets out the person’s responses, our reasoning, conclusion and limitations. Attendance notes and earlier instructions can help show how they have engaged with advice over time.
- What the legal matter is about and what the person wants the firm to achieve.
- The solicitor’s role and that the solicitor acts for the client, rather than for their relatives.
- The main choices involved and the advice needed to make them.
- The broad costs of the work and the proposed arrangements for paying them.
- The confidential nature of the relationship, including any relevant limits explained by the solicitor.
- The ability to seek another opinion, change instructions or end the relationship with the firm.
Working with the person and their solicitor
Agree the question
The firm or person instructing us explains the matter, the concern about capacity and any deadline. We identify any separate questions, such as litigation capacity, before agreeing the work.
Prepare the appointment
We confirm the scope, fee, timetable and documents needed. We discuss the person’s communication needs, best time of day and a suitable setting. A home visit is usual; remote assessment may be appropriate.
Assess and report
We meet the person, consider the relevant evidence and prepare the written opinion. A second qualified professional peer reviews the reasoning, evidence and structure before secure delivery. Clarification is available afterwards.
Documents that help us prepare
Start with the decision, who needs the report and any deadline. We will explain which documents would help and how to share them securely. Please use the general enquiry form for a short summary; medical, legal and financial records should be sent through the secure route agreed with our team.
- The proposed instructions, retainer or explanation of what the firm has been asked to do.
- Relevant advice and attendance notes, including any changes in instructions.
- Medical information relevant to decision-making and earlier capacity assessments.
- Care records or observations that help explain how the person manages information in daily life.
- Details of who is involved, any concerns about pressure and the person’s communication needs.
- Any court directions, requested report format and deadline.
Fees and what is included
The standard fee is £720 including VAT for the agreed instruction-capacity assessment and report. Relevant-record review, peer review and secure delivery are included. If the firm needs a litigation assessment or a certificate of capacity to conduct proceedings, that is a separate service.
Capacity to instruct a solicitor assessment
£720 including VAT
£600 net + £120 VAT
One assessment and written report on giving instructions about the agreed matter, with relevant-record review, peer review and secure delivery. A certificate of capacity to conduct proceedings is not included.
Mental capacity assessment reports are delivered within five working days of the completed assessment. Appointment dates are arranged through our reception and client liaison team.
Questions about this assessment
Is this the same as capacity to conduct court proceedings?
No. Conducting proceedings is a separate question, considered in the context of the case and the legal advice and assistance available. This service does not include a litigation-capacity certificate.
Can a relative give the instructions for them?
A relative may help with communication or practical arrangements, but that is different from making the client’s decisions. Tell the solicitor and assessor about any authority the relative holds and the help they are providing.
Can someone with dementia still instruct a solicitor?
Yes, they may be able to. A diagnosis does not answer the question. The assessment considers this matter, the relevant information, available support and the person’s abilities at the relevant time.
What if instructions have changed?
Changing one’s mind does not prove incapacity. We consider what has changed, the person’s explanation and relevant records. If the question concerns instructions given in the past, it may require a retrospective assessment rather than this current assessment.
Does the report prove that the retainer or transaction is valid?
No. It provides evidence about the agreed capacity question. The legal effect of a retainer, the validity of a transaction and concerns about undue influence may require separate advice.
Sources and related assessments
These sources explain the assessment framework. We agree the precise question and any court or other reporting requirements for each instruction.