Frequently Asked Questions in Assessment for Mental Capacity

Mental capacity is merely another way of saying ‘A person’s ability to make a decision’. Mental capacity is determined by whether a person has an impairment or disturbance of the mind or brain (such as a mental illness, brain injury, stroke or severe learning disability) that is directly affecting their ability to understand, retain, weigh up information related to the decision and/or communicate their thoughts, wishes and feeling about the issue.

Because every decision we make requires us to understand different pieces of information, we say that mental capacity is ‘item specific’. For example, what a person needs to understand to decide where to live is very different to what they would need to understand to make a Will. It is therefore possible to have capacity to make some decisions but not others.

You may also hear us say that mental capacity is ‘time specific’ – this is because someone’s mental capacity can fluctuate; decline or improve depending on their cognition at that time. For example, someone who has had a stroke may lack the mental capacity to make health and welfare decisions only a week after the stroke, however, they may then regain that capacity a couple of months down the line. Another example may be someone who has dementia and experiences higher levels of confusion at different times of the day.

A mental capacity assessment is how we work out a person’s ability to make a specific decision. Different decisions require you to understand different things, we call this ‘The threshold of understanding’. The threshold of understanding for different decisions is established either through case law (for example in the case of making a Will its Banks v Goodfellow) or through the Mental Capacity Act (2005).

The use of the word ‘test’, which is sometimes used, is often misleading – a mental capacity assessment is much more about having a conversation with someone. In fact, we do our very best not to make it feel like a test as we want to ensure the person is comfortable and feels able to answer without pressure.

Yes, the two things are very different. In fact, it is very common for people to have a mental health diagnosis and have capacity to make decisions.

There are specific legal criteria which a person needs to meet, and these vary depending on the decision being assessed. By using recognised and TSF specific methods to set the threshold of understanding, we are able to identify the necessary information a person needs to understand, retain, weigh up/ use and communicate to help us determine if a person has capacity.

No, they are two very different things. A mental capacity assessment is about determining a person’s ability to make a decision. A mental health assessment is to determine if a person has a mental illness.

A Mental Capacity Assessment consists of three stages (read here for more detail) but the one most people are concerned about is the ‘face to face’ element.

The first thing to emphasise is that an assessment is not about trying to ‘catch you out’ – it is about showing you at your best, identifying your strengths, weaknesses and any support you require in relation to being able to make the identified decision.

In order to do this, one of our Mental Capacity Assessors will ‘meet’ with you remotely via video link on a one to one basis, at a time to suit you and place where you feel comfortable. Our Assessor will take time to put you at ease and explain exactly what they are assessing for and the specific criteria that they are looking for. We don’t believe in trick questions and if there is anything you don’t understand let the Assessor know so they can explain it to you in a way you can.

Whilst our preference is that we see you by yourself, you can have other people around to introduce you and help you settle before the assessment. They can also stay in close proximity, say another room, so that you can call for them if you feel you need their support with anything.

We realise that doing an assessment by video link may mean you require additional help or support and you may want someone with you throughout (for example an interpreter or carer). As long as we can see them next to you on the screen at all times, that’s ok too.

We have had great success assessing mental capacity over virtual platforms (such as Zoom, Teams or Skype) both pre and during the Covid-19 pandemic.

We use a platform that suits the client and their access to technology. We will organise a supporting person to be in the room with the client where necessary.

We’ve not found there to be any major disadvantages to assessing remotely (in fact, there are many advantages) and we are confident that we can still complete a mental capacity assessment to the same high standard as if we were face-to- face.

We intend to continue to offer remote assessments to those who prefer this option after social distancing measures have been eased. Please discuss with us if you have concerns about the virtual assessment process and we are confident that we can troubleshoot these with you.

All our remote assessments via live video-link take place at a time and location of your choosing – it just needs to be somewhere you feel comfortable and in a location that offers privacy. The vast majority of our assessments take place at the person’s home, or care home.

All of our assessors hold health or social care qualifications and are registered with the relevant professional and governing bodies. We have staff with varied backgrounds including, Social Work, Nursing and Allied Health Professionals. 

All our remote assessments via video link take place at a time and location of your choosing, it just needs to be somewhere you feel comfortable and in a location that offers privacy. The vast majority of our assessments take place at the person’s home, or care home.

This depends on a number of different factors such as how many decisions are being assessed and the extent of a person’s cognitive impairment. In general, you should allow for an hour to an hour and a half for the assessment of one decision.

This is not a problem and not uncommon. All our Assessors are skilled in supporting individuals with communication difficulties. If we are aware of the difficulties beforehand, we build in add extra time and support to the assessment process. We also have specialist Speech and Language Therapists as part of our team which further add to our ability to support those with communication difficulties.

It is important that we get a true picture of what you can and cannot do by yourself. Often when others are in the room, they can inadvertently influence the way a person acts and responds.

We realise that doing an assessment by video link may require additional help or support and you may want someone with you throughout (for example an interpreter or care worker). As long as we can see them next to you on the screen at all times, that’s ok too, but ideally, this won’t be a family member.

It is really important that we are able to validate any information a person gives us during an assessment and the information we receive will help to determine some of the questions we ask during the assessment. The referral form also enables us to gain an insight into the individual we are assessing, what factors may influence the way they think and whether they might need any additional support during the assessment.

Our aim is to carry out all assessments within two weeks of receipt of payment. They are often carried out more quickly that than this and if yours is particularly urgent or you have a deadline let us know in advance and we can make arrangements to ensure it is completed it in time.

You can instruct us directly, but it’s necessary to seek the advice of a solicitor or financial adviser before doing so.  This is so they can help you navigate the legal aspects of your situation and ensure you are requesting the correct assessment and documents for your needs.

Please contact our Client Liaison Team either by telephone 0333 577 7020 or via the Contact Us form. If you have discussed your enquiry over the phone, with your consent, you will receive an email with a copy of your quote, required referral documentation, our present turnaround times and details of the next steps. If you are happy to proceed, please complete and return the documentation and you will then be issued with an invoice. Once payment has been received, your dedicated Client Liaison Officer will liaise with you or a nominated contact to arrange a mutually agreeable date and time for the assessment.

If you have submitted your enquiry via the contact us form, you will receive a reply within 48 hours detailing the same as the above.

Our summary reports are a four page document including a title page and summary of opinion. They set out all the key points of an assessment and will detail whether the person has capacity, as measured by the criteria in the Mental Capacity Act or relevant case law. They are ideal for decisions such as LPAs or a Testamentary assessment where a future challenge is not anticipated.

For more complex decisions, or where a case is likely to be contentious, our full reports include as standard; background information, a transcript of the interview, an overview of the criteria for capacity in the Mental Capacity Act or case law relating to the decision in question, analysis of the interview in the context of the relevant law or case law, and summary of opinion. Our full reports always include the statement of truth and are designed to be submitted as an expert witness report for the Court.

The majority of the time we are able to identify whether a person has capacity or not during the first remote meeting via video link. On occasion, a second meeting is required, and this may necessitate a face to face meeting, when we are able to do so. We will discuss this with you as soon as it becomes apparent.

If, for whatever reason, the remote assessment via video link has been unsuccessful, we will include a subsequent face to face meeting (when able to do so) in the original price, plus travel and travel time.

The majority of the time we are able to identify whether a person has capacity or not during the first remote meeting via video link. On occasion, a second meeting is required, and this may necessitate a face to face meeting, when we are able to do so. We will discuss this with you as soon as it becomes apparent.

If, for whatever reason, the remote assessment via video link has been unsuccessful, we will include a subsequent face to face meeting (when able to do so) in the original price, plus travel costs and travel time.

If the person being assessed is unwell, we would be unable to conduct the assessment. It is important that we give the individual all they need to show the best of themselves during the assessment. We ask that you inform us as soon as possible if a cancellation needs to be made, this helps us avoid any unnecessary costs being passed on. In some circumstances there will be a small administration charge, but we do our best to keep this to a minimum.

Once the client is feeling better, please contact your Client Liaison Officer to re-arrange the assessment. (In cases where the client has been unwell due a UTI, we would like to allow at least two weeks to ensure they are clear of any infection.)

‘CoP’ stands for ‘Court of Protection’. Every application to the Court of Protection must have a Mental Capacity Assessment conducted. The form that we use to document the Mental Capacity Assessment is known as a ‘CoP3’ because it is the ‘Court of Protection’ form, number ‘3’.

If it is found that a client lacks capacity for property and finance, health and welfare or testamentary, we can complete part B of a COP3.

The certificate provider, Section 10, of the LPA is to be signed by a someone to confirm that the person singing the LPA understands what they are signing and is under no duress.

Yes, we are frequently asked to be certificate providers (section 10) for LPAs.

At present, the law does not permit us to act as a witness via video link, so unfortunately we cannot do this under current conditions.

Testamentary Capacity is just another way of saying ‘the ability to make a Will’. The criteria for this is laid out in a ruling known as Banks v Goodfellow. It essentially says that in order to make a Will a person needs to be able to understand the nature and purpose of a Will, to understand the extent of their estate, to be able to consider the claims of those that may feel they should inherit and there is no mental ill health or cognitive issues stopping the person from being able to make the Will.

At present, we are unable to act as a witness via remote link.

When we complete a testamentary capacity assessment we produce a comprehensive report that can be kept alongside the signed Will. In many circumstances this independent and robust report can be used in the circumstance of a contest. It would give evidence to show that the person had capacity to create a Will and the discussions of their wishes for the Will.

If the situation calls for it, we can also provide further information from the assessment or ask the assessor to attend court, when able to do so (please be aware there would be additional charges for this service).

Capacity to Litigate is another way of saying if a person has the mental capability to partake in legal disagreements that are being settled in court. These disagreements can cover many areas of the law such as divorce, medical negligence or criminal to name a few.

As much as possible. It is really helpful for us to understand the background to the case and any concerns as to why you think the person may have or lack capacity. It is not always necessary to have access to medical records so please check before you go to all the trouble of getting them and sending them to us.

We do not provide second opinions on mental capacity assessments relating to health and welfare or residence decisions completed by Local Authorities or NHS Trusts. If you are unhappy about the outcome of a Local Authority or NHS Trust mental capacity assessment, in the first
instance you should follow the relevant organisation’s complaints procedure or PALS.

When able to do so, our Assessor can attend court if needed, subject to an additional charge to cover travel costs, time at court and any additional expenses incurred.