Mental Capacity Assessment
Expert opinion on whether someone had capacity at a specific point in the past
A retrospective mental capacity assessment is an expert assessment of whether a person had the mental capacity to make a specific decision at a specific date in the past. It is used in litigation, contested probate proceedings, LPA validity challenges, financial abuse claims, and Court of Protection cases where capacity at an earlier point in time is in dispute. Nellie Supports provides retrospective capacity assessments for litigation solicitors and Court of Protection practitioners. All reports are CPR Part 35 compliant, produced by registered assessors, and peer-reviewed.
Records-based expert opinion for litigation and contested probate. CPR Part 35 compliant. 10–14 day turnaround from records review.
At a glance
Decision
Capacity for a specific decision at a date in the past
Legal framework
Mental Capacity Act 2005, section 2(1)
Format
Desktop assessment, no visit required
Report
Court-ready and peer reviewed
Coverage
England and Wales
£3,500 + VAT
Fixed fee, stated before instruction
10–14 days
Report delivery from completion of records review
England and Wales
Nationwide coverage
Peer reviewed
Every report checked by a second professional
Plain-English explanation
What is a mental capacity assessment?
A mental capacity assessment is a decision-specific and time-specific process used to determine whether a person can make a particular decision for themselves. Under the Mental Capacity Act 2005, the assessor considers whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. A person can only be found to lack capacity where an impairment of, or disturbance in, the functioning of the mind or brain causes their inability to decide. It is not a general test of intelligence, memory or diagnosis, and every practicable step must first be taken to support the person to make the decision.
A retrospective assessment asks that same question about a date in the past: whether the person had capacity for a particular decision at the time they made it. Section 2(1) of the Act frames capacity at the material time, which is why the date and the decision both have to be defined before the work starts.
It is a desktop assessment. The opinion is reconstructed from contemporaneous records and accounts rather than from meeting the person, which is often the only route available where the person has since died or lost capacity.
An unwise decision is not the same as lacking capacity
A decision that looks surprising in hindsight, or that disadvantaged the person, is not evidence that they lacked capacity when they made it. The question is whether they could make that decision at that time, not whether it turned out well.
Common situations
When is a retrospective assessment used?
Retrospective capacity assessments are used across a range of legal proceedings where the capacity of a person at a past point in time is relevant to the outcome of a claim or application. The most common uses are contested wills and contentious probate, where a will is challenged on the grounds the testator lacked testamentary capacity at signing, LPA validity challenges, where the donor's capacity at signing is disputed, and financial abuse and undue influence claims, where capacity at the time of specific financial decisions, including gifts, transfers, and changes to a will or LPA, is a central issue.
Retrospective assessments can be used in Court of Protection proceedings where capacity at a past date is relevant to a current application, and in personal injury and clinical negligence cases involving acquired brain injury or other conditions affecting cognition. A retrospective assessment can be conducted where the individual is deceased. This is common in contested probate and financial abuse claims, and our assessors acknowledge this limitation explicitly in every report in accordance with CPR Part 35.
A will is being challenged
A will is disputed and evidence is needed about whether the testator had capacity when it was made.
A gift or transfer is questioned
Money or property changed hands and there is a question about whether the person could make that decision at the time.
A contract or transaction is disputed
An agreement, sale or financial transaction is being unwound and capacity at the date of signing is in issue.
An LPA or deputyship is questioned
There is a challenge to whether the donor had capacity when the instrument was made or registered.
The person has died
The person is no longer available to be assessed and the records are the only remaining evidence.
The person has since lost capacity
The person's condition has changed materially since the date in question, so a current assessment would answer the wrong question.
Decision-specific content
What this assessment covers
This assessment addresses whether the person had capacity for a specific decision at a defined point in the past. Section 2(1) of the Mental Capacity Act 2005 frames capacity at the material time, so the date and the decision are fixed at the outset and the opinion is anchored to them. The opinion is given on the balance of probabilities, and it remains for the court to determine capacity. The work typically establishes:
The specific decision in question, and the date or period over which it was made
What information was relevant to that decision, judged by the test that applied to it
What the contemporaneous records show about the person's presentation at and around that date
Whether an impairment of, or disturbance in, the functioning of the mind or brain was present at that time
Whether that impairment caused an inability to make that particular decision, rather than simply coexisting with it
Whether the person's presentation fluctuated, and what that means for the date in question
The records set the limits of the opinion
A retrospective opinion can only be as strong as the material behind it. Where the records are thin or silent on the date in question, the report says so and explains what could and could not be concluded, rather than filling the gap. An expert opinion that overstates what the evidence supports is worth less than one that marks its own limits.
1
The functional test
The appropriate legal test depends on the date of the decision in question and its nature. The Mental Capacity Act 2005 applies to decisions made on or after 1 October 2007, when the MCA came into force. For decisions predating the MCA, the common law test of capacity applies. For testamentary decisions, the Banks v Goodfellow test (1870) applies regardless of date. Our assessors apply whichever framework is correct and set out clearly the test applied, the evidence considered, and the conclusions reached.
The Mental Capacity Act 2005, for most disputes involving living persons
Banks v Goodfellow, for will disputes considered after death
CPR Part 35 and Practice Direction 35, where the report is expert evidence in litigation
The relevant information and time period for the exact decision in dispute
2
Impairment and causation
Because the assessor never met or examined the individual at the relevant time, the opinion is based entirely on contemporaneous evidence. Our assessors acknowledge this limitation in every retrospective report and explain how they have approached their opinion in light of it. Where the available evidence does not support a firm opinion, we say so. We do not overstate our conclusions. This transparency is a requirement of CPR Part 35 and essential to the report's credibility in proceedings.
Key authorities: Mental Capacity Act 2005 ss 1–3 (for decisions after October 2007); Banks v Goodfellow (1870) LR 5 QB 549 (testamentary decisions); Re Beaney [1978] 1 WLR 770 (lifetime gifts); common law capacity test (for earlier decisions).
For the framework in full, see our mental capacity assessment services.
Legal framework
The legal framework we apply
Initial enquiry and triage
We discuss the background, the decision being challenged, the relevant time period, and what the report is needed for, confirming whether a retrospective assessment is appropriate and the likely scope.
Evidence gathering and document review
Once instructed, we identify and review the key material from the relevant period, including medical records, care notes, legal documents, correspondence, witness evidence and safeguarding material.
Analysis of the decision and relevant evidence
We analyse the evidence against the correct legal framework, considering the specific decision, the relevant information, any impairment, and whether the person was likely able to understand, retain, use or weigh the information and communicate a decision at that point.
Report preparation
A detailed report is prepared, setting out the evidence considered, the legal and professional framework applied, the reasoning followed, and the expert opinion reached, written for confident use in legal or formal settings.
Peer review and secure delivery
Before delivery, the report is reviewed internally for clarity, balance and quality assurance, then provided securely, with clarification available for the next stage of the matter.
What happens next
How a retrospective assessment is conducted
Working from the records
How we support decision-making
The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:
Plain language and real examples
Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.
The right time and place
Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.
A familiar person nearby
A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.
Communication adjustments
More time, information broken into stages, and written notes or aids where they help the person express a view.
Evidence base
Evidence we review
The assessment is built entirely from the documentary record and the accounts of those who were there. This typically means reviewing:
Medical records
GP and hospital records spanning the relevant period, including any cognitive testing carried out at the time.
The document or transaction itself
The will, deed, agreement or instrument in question, and the instructions that led to it.
Attendance notes and correspondence
Solicitors' file notes are often the single most valuable record of how the person presented on the day.
Financial records
Bank statements and transaction histories that show how the person was managing around the relevant date.
Care and support records
Care plans and daily notes from the period, which often capture fluctuation that clinic letters miss.
Accounts from people who were there
Statements from family, friends and professionals who saw the person at or near the material time.
Deliverable
Inside a Nellie Supports retrospective report
Every report follows a structure a court, solicitor, bank or public body can scrutinise: evidence, analysis and conclusion in a traceable line. The methodology section explains clearly what evidence was reviewed, what limitations apply, and the basis of the expert's opinion.
The exact decision being disputed and the relevant date or timeframe
The contemporaneous records reviewed, closest in time to the decision
What relevant information the person needed to understand for that decision
Evidence of any impairment or disturbance in the functioning of the mind or brain
The person's likely ability to understand, retain, use or weigh the information
Their likely ability to communicate a decision at that time
Factors such as delirium, dementia, brain injury, medication, grief, depression or coercion
What is shown directly, what is inferred, and where the limits of the evidence lie
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Most retrospective capacity questions | |
Enhanced Assessment (EMCA) | Contested, high-value or high-risk matters | |
Court-specific instruction | Court of Protection or other proceedings |
Who we work with
For solicitors, deputies and other professionals
Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:
Scope confirmed in writing
The decisions to be assessed, the fixed fee and the timescale are confirmed in writing before instruction.
A traceable evidential line
Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.
Peer review as standard
A second qualified professional reviews every report before it leaves the practice.
Follow-up clarification
Clarification for instructing parties is included after the report is delivered.
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Transparent pricing
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For families
One fixed fee, stated before instruction and confirmed in writing, with no surprises. This is a desktop assessment, so there is no visit to arrange, and your report is delivered within 5 working days of receiving the complete records, in a form solicitors and the courts can rely on.
For professionals
A permanent, employed multidisciplinary team, not an ad hoc associate or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional and structured for scrutiny, with reports relied on in the Court of Protection, the Family Court and the Court of Appeal.
Provider evidence
Why choose Nellie Supports for your mental capacity assessment
England and Wales' largest identified specialist private social work and mental capacity assessment practice, with over 11,000 formal assessments and reports completed by a permanent full-time multidisciplinary team.
Why instruct Nellie Supports
Decision-specific, not generic
We focus on the actual decision in dispute, the exact time period, and the available evidence, not a general comment on someone's health.
Grounded in contemporaneous evidence
The opinion is anchored in the records and material closest in time to the disputed decision.
Clear about fact, opinion and inference
We distinguish what the records show, what witnesses recall, what can be inferred, and where the limits lie.
Built for scrutiny
Suitable for probate, Court of Protection, litigation and disputed transaction contexts, structured with expert evidence standards in mind.
Precise, not overstated
Credibility in retrospective work comes from precision, so the report says clearly what can and cannot be concluded.
Multidisciplinary quality assurance
A multidisciplinary practice with structured internal peer review before every report is delivered.
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Frequently asked questions
Frequently asked questions
Do you need to meet the person for a retrospective assessment?
Usually, no. A retrospective assessment is primarily based on evidence from the relevant time rather than current presentation. The key material comes from medical records, care notes, legal documents and witness evidence. Where useful, a present-day assessment can be added for context, but the core opinion focuses on the past decision.
What happens if the records from the time are incomplete?
Incomplete records do not necessarily prevent a retrospective assessment, but they affect how far the opinion can go. The assessor looks carefully at the quality of the available evidence, and a good report is clear not only about what the evidence supports, but also where there are gaps, limits or uncertainty.
Can it help if there was never a formal assessment at the time?
Yes. That is one of the most common reasons these assessments are needed. Where no formal assessment was completed, the task is to reconstruct likely decision-making ability from the surrounding evidence, providing a structured, independent opinion where the original evidence was missing or unclear.
Is this the same as a testamentary capacity assessment?
Not always. A testamentary capacity assessment is specifically about capacity to make a will. A retrospective assessment is broader and can apply to many past decisions. Where the issue is a disputed will, the retrospective report may deal with testamentary capacity, but retrospective work is not limited to probate matters.
Can the report comment on undue influence or coercion?
It can consider evidence of pressure, coercion, vulnerability or possible undue influence where relevant to the person's ability to make the decision. However, it stays clear about the difference between assessing capacity and determining wider legal issues, which may ultimately be for the court to decide.
Will the report be suitable for court use?
Yes, where it is prepared for that purpose. Retrospective reports are often used in probate disputes, Court of Protection matters and civil litigation. A strong report is clear, independent, properly reasoned, and focused on the actual issue the court or parties need answered.
Where do you cover?
Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £40 per hour and confirmed before booking.
Who will carry out the assessment?
A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.
What is a retrospective mental capacity assessment?
The decision, the evidence and the opinion explained
Assessing capacity at a historical date
How experts reconstruct capacity from the records
Evidence needed for a retrospective capacity opinion
What material strengthens the opinion
Retrospective capacity in disputed transactions and wills
Applying the right test to the right decision
Limits of retrospective mental capacity evidence
What retrospective evidence can and cannot show
Supporting guidance
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Testamentary capacity assessment
For making or amending a Will, applying the Banks v Goodfellow test.
Statutory will assessment package
Court-ready evidence package for a Court of Protection statutory will application.
COP3 mental capacity assessment
For Court of Protection deputyship applications.
Other assessment types
Discuss the instruction
Arrange a retrospective mental capacity assessment
Tell us about the matter, the decision in question, and the records available, and we will confirm the assessment, fee, and earliest appointment. We aim to respond to all referral enquiries within one working day.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.