Mental Capacity Assessment

‘The top Legal 500 Solicitors firms use our services because of the quality we produce’ – Peterkin Ofori – Inhouse Counsel and Consultant

Most Common Assessments We Do

  • Capacity to litigate.
  • Testamentary Capacity.
  • Capacity to make a gift.
  • Variation of Deed.
  • Capacity to consent to sex.
  • Capacity to displace an Attorney.
  • Capacity to consent to treatment.
  • Capacity to consent to marriage.
  • Capacity to displace an Attorney.
  • Capacity to consent to treatment.

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Where there is a doubt about a person’s ability to make a will. I.e where they person suffers from any form of mental disorder, impairment or disturbances to the functioning of the brain, a Testamentary Capacity, which is another way of saying capacity to make a Will may be required. Testamentary capacity is not covered by the Mental Capacity Act (2005) and so requires another legal test, which was established in Banks v Goodfellow (1869).

Capacity to Litigate

Part 21 of Civil Procedure Rule (CPR rule 21) requires any person who conducts litigation to have a full capacity to litigate the whole process. Where the a litigating person lacks capacity, the law requires that he is treated as a protected person. Mental capacity to litigate assessment is not covered under the Mental Capacity Act (2005). Therefore, the Assessor must have a good understanding of the legal principles established in Masterman-Lister v Brutton & Co. in order to undertake such assessments.

Contentious Probate

Disputes sometimes arise after someone has died and proving or establishing the validity of the disputed Will may require the re-examination of the person’s mental capacity at the time of writing the Will. It is possible to pass an opinion on someone’s mental capacity to make a Will after they have died. This involves a close examination of medical notes and other information.

Certificate Providers – Lasting Powers Of Attorney

lasting power of attorney ( LPA ) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf. As a  Doner, you can officially appoint someone you trust to make decisions for you when you are not able to do so, due to lacking capacity. There are 2 types of LPA: health and welfare and property and financial affairs. By appointing person(s) you trust, enables you to give another person the right to make decisions about your care and welfare as well as to decide on financial and property matters.

Every Lasting Power of Attorney (LPA) has to have a person to confirm the person making the LPA understands what they are signing and not under duress, known as a certificate provider. We provide certificate for a fee, after explaining the LPA documents to ensure that you fully understand what you are doing.


COP3 is a mental capacity assessment to determine the relevant person’s (the person the application relates) mental capacity of the matter to be decided by the Court. If you are applying to start proceedings with the Court of Protection, you must file COP 3 form with your COP1 application form.. The assessment must contain current information. We complete the Part B and the person making the application must complete Part A of the COP3 form.

We routinely complete COP3 for deputyship and statutory will applications to the Court of Protection.

Capacity To Make A Gift

This requires the assessor to understand the sliding scale of capacity to make a gift according the existing caselaw. The level of understanding required varies depending upon the particular transaction in question. If someone makes a very small gift (in terms of value and subject matter) in relation to their assets as a whole, then they only need to understand that they are gifting an item and that they will not get it back.

At the other end of the scale, if the gift is the person’s only real asset of value (for example, their home) then they must have the same understanding that is required when they make a will.

Frequently Asked Questions (FAQs)

How do we conduct mental capacity assessment ?

Mental Capacity Consult’s assessments are conducted in a friendly, kind and a calm manner. We prefer to do the assessment in clients home so that they feel safe and comfortable to afford them the best opportunity to express their wishes, and to engage in the assessment.  

Mental capacity assessments are done through talking and engaging in conversation with the client. We do not use any structured format to conduct our assessment, and the conversation is mostly client led, while we facilitate the directions to make it relevant to the assessment we are undertaking.  We do not conduct any diagnostic test. We do not conduct any formal memory or medical test on our client. Our sole role is to assess the client to establish if they have the ability to make the relevant decision.  

We quickly build rapport with our clients using the environment and trying to establish their interests the moment we meet them to get them to relax. For instance, we shall quickly engage a client in discussions about their day, family photos, pets, or anything we find relevant within their immediate environment that we may consider to be relevant to them. This is designed to help them to settle down and comfortable. 

What it the Length of Time of assessment?

We aim to afford all our clients the opportunity to explore and use their ability to make the relevant decisions. Our assessments commence the moment we meet the clients. We give our clients enough time to feel comfortable, build rapport, and able to engage us. The assessment would go on until we are satisfied that we are able to form an opinion. We are very conscious of the respect and dignity of clients. Therefore, we make a conscious effort not to patronise our clients for the purpose of going through every element of a particular mental capacity test.  

So typically, one mental capacity assessment or mental capacity test as some people like to call it may take between 45 minutes to 3 hours depending on the type of assessment and the clients. There are occasions where some assessments take more than a day, or there may be several visits to assist in the formation of opinion.  

Can a Family Member be present for the mental capacity assessment?

According to s.1(3) of the Mental Capacity Act 2005 (MCA 2005) it is a fundamental principle of any mental capacity assessor to ensure that all practicable steps are taken by the mental capacity assessor to ensure that the individual being assessed has been given the opportunity to make a decision being considered. The role of the Mental Capacity Assessor is to ensure that the person being assessed first, has the ability to make the specific decision, and secondly, has been given the opportunity to make the specific decision.

The presence of family members during a mental capacity assessment can have both advantages and disadvantages. On one hand, having family members present can provide valuable insights into the individual’s day-to-day functioning, behaviour, and cognitive abilities. They may be able to provide important background information, and help the assessors gain a better understanding of the person’s overall mental state.

On the other hand, the presence of family members might inhibit the individual being assessed. Some individuals may feel more comfortable and at ease with their loved ones present, while others may become more anxious or self- conscious.

Additionally, there may be situations where the presence of certain family members could potentially create conflicts of interest or interfere with the objectivity of the assessment.

Ultimately, the decision regarding who can be present during a mental capacity assessment is usually made by the assessing professional, taking into account the specific circumstances and the individual’s best interests.

How do you decide if a person has mental capacity?
In the Mental Capacity Act 2005 a decision about whether or not the person has capacity must be made on the balance of probabilities. Thus, for example, if the weight of the evidence is 49–51% that the person has capacity then it must be decided that they do, and vice versa.
Who can carry out mental capacity assessment?

The whole of the Mental Capacity Act 2005 does not identify any person/profession to do mental capacity assessments. Therefore, the act requires the decision maker to make the decisions.

The decisions makers are the relevant persons themselves (P). And that is where the 1st principles under the Mental Capacity act 2005 comes in. That is where the Act expects everyone to have the mental capacity, and therefore we should all assume that the person making the decision has the mental capacity to do so.

However, if there are evidence to suggest that P may not have the ability to make a decision, i.e., understand the relevant information, use and weigh them, then the responsibility falls on person (D) who is seeking to rely on P’s decision to ensure that the decision P makes is in line with the Mental Capacity Act 2005.

D is anyone who is seeking to rely on the decisions P makes to take any form of action because of P’s decision. They can be families, carers, professionals such as accountants, Deputies, Doctors, Social Workers, nurses etc. These people have an obligation under the Mental Capacity Act 2005 to ensure that P has the mental capacity to decide the relevant matter where there is reasonable evidence to suggest that P may lack capacity. If the decision is complex, then a health or social care professionals like a Mental Capacity Consult Consultant can be appointed to assess the person’s ability to make informed decisions.

When is an expert mental capacity assessment required?

This depends on the complexity of the decisions that a person is required to make. Carers are. not expected to do a mental capacity assessment for routine cares where P is either likely to consent or done in their best interest. However, where the decision is complex, such as managing property and financial affairs, litigation, making a Will, marriage, managing health and welfare, accommodation, and care, selling a house, and or making a substantial gift, then. an assessment may be required.

In such instances, if there is evidence of an impairment, and a properly supported process does not enable the person to make the specific complex decision. Or another person may doubt the person’s ability to make the specific decision, then a mental capacity assessment would be required. All those taking some action on behalf, or relying on decision made by P in such complex situation will be expected to be able to assess capacity or seek professional opinion from Mental Capacity Consult Ltd.

What practicable steps are to be taken before and during mental capacity assessment?
  • Familiarize yourself with relevant legal and ethical guidelines.

Understand the laws and regulations pertaining to mental capacity assessment in your jurisdiction. Familiarize yourself with the relevant ethical guidelines and professional standards to ensure your assessment aligns with best practices.

  • Obtain informed consent.

Before proceeding with the assessment, obtain informed consent from the individual being assessed, if possible. Provide clear information about the purpose, nature, and potential outcomes of the assessment to ensure their understanding.

  • Arrange a suitable day and time for the assessment.

Ensure that the date and time arranged for the assessment are suitable for the client. Ask questions about the sleeping patterns, medications and types which are likely to affect their cognition, the time such medications are taken, when the client is more likely to be alert. This information is considered together to arrange a suitable time to see the client. 

  • Create a suitable environment.

Ensure the assessment takes place in a comfortable, private, and conducive environment that promotes open communication. Minimize distractions and interruptions that may hinder the individual’s ability to concentrate and express themselves.

  • Use appropriate communication methods.

Tailor your communication style and methods to accommodate the individual’s needs. Consider their preferred language, sensory impairments, or any cognitive or communication difficulties they may have. Use clear and simple language, provide visual aids if necessary, and allow ample time for responses.

  • Gather relevant information.

Collect comprehensive information about the individual’s background, medical history, and any relevant social or cultural factors. Consult them healthcare providers, family members, or caregivers for additional insights, with the individual’s consent if required.

  • Employ communication tools.

Utilize validated and standardized communication tools known to the individual to ensure consistency and clarity. These tools can help assess specific domains of mental capacity, such as understanding, decision-making, or communication.

  • Ensure assessment of capacity is for a specific decision.

Focus the assessment on the individual’s capacity to make decisions regarding a particular issue or context. Avoid making global judgments about their overall capacity. Tailor the assessment to the decision at hand and explore the person’s abilities and limitations in that specific area.

  • Document the assessment process.

Maintain clear and accurate records of the assessment process, including the methods used, observations made, and responses obtained. Document any relevant factors that may have influenced the assessment outcome. 

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