Juliet Oliver and Polly Sweeney discuss the risks involved when returning to face-to-face working with clients and offer practical guidance on how…
This guidance is aimed at solicitors, and will help you assess whether clients have mental capacity to instruct you, and whether you can accept and act on the client’s instructions.
It explains the principles for assessing capacity, and the legal tests you can use in different circumstances, such as making a will, making a lifetime gift, and conducting civil proceedings.
It also covers techniques for assessing capacity, and what to do if a client lacks capacity to give you instructions.
Mental capacity is the ability to make a particular decision. This includes both day-to-day decisions and more significant decisions that may have legal consequences, such as:
Capacity is decision-specific, so a client could have capacity to make a simple decision but not a complex one, or one that has significant consequences or carries significant risk.
The client may have capacity to make certain types of decisions, but not others. For example they may have capacity to make decisions about where they live and their care, but not have capacity to manage their finances to pay for the arrangements.
If you have reasonable doubt about your client's capacity to give proper instructions, it’s your professional duty to satisfy yourself whether the client has the capacity to give instructions (RP v Nottingham City Council and Official Solicitor  EWCA Civ 4).
The statutory test of capacity to make a property and financial affairs or personal welfare decision is contained in section 2(1) of the Mental Capacity Act 2005 (MCA). See The legal test for capacity to make decisions below.
There is judicial debate about the relationship between the statutory capacity test and common law tests of capacity. The High Court has considered the position on the test for capacity to make a will and to make a lifetime gift, following the death of the testator and donor. You should take great care to ensure that the correct test is being taken for your client’s particular matter, as the law in this area is developing quickly.
The test of capacity to conduct proceedings is covered below, along with other specific tests.
Section 1 of the Mental Capacity Act 2005 (MCA 2005) contains the first three principles that are the starting point for assessing capacity:
The starting point is the presumption that an adult client has full legal capacity to make their own decisions. Where there is doubt about a person’s capacity, the burden of proof is on the person seeking to establish a lack of capacity, on the balance of probabilities.
A person must be given all appropriate help and support to enable them to make their own decisions. Chapter 3 of the MCA 2005 statutory Code of Practice sets out ways in which the person may be supported to make their own decisions. The Code of Practice is under review during 2020, and you should keep up to date with when the new version is published.
An unwise decision should not, by itself, be sufficient to indicate lack of capacity. However, doubt may be raised about the person’s capacity if, for example, their decision is out of character. An unwise decision may be a symptom of the person’s incapacity or the undue influence by another person over them.
A lack of capacity cannot be established merely because of a person's age, appearance, condition or an aspect of their behaviour. A diagnosis or condition does not mean the client lacks mental capacity to make the decision.
Section 2(1) of the MCA 2005 provides that a person lacks capacity to make a decision if:
Capacity is both decision specific and time specific. Capacity will vary depending on the decision being made, the time it is made, and the circumstances of the person being assessed.
An impairment or disturbance can be temporary, or fluctuate. The relevant time for establishing whether one exists is the time the decision needs to be made.
Information relevant to a decision will include:
You must explain the relevant information in ways that are appropriate to the person's circumstances, using the most appropriate form of communication to help the person understand.
Retaining information for even a short time may be enough for some decisions.
You can find further guidance about the MCA 2005 test of capacity in chapter 4 of the Mental Capacity Act Code of Practice.
You must be satisfied that your client has capacity to give you instructions on the matter you are dealing with. If you have any doubt about this, you must do a capacity assessment before you act on any instructions. If you do not, you may be at risk of sanctions. See our guidance on meeting the needs of vulnerable clients.
Different levels of capacity are needed for different transactions, such as making a gift or conducting litigation. You must assess your client’s understanding in the context of the transaction, applying the relevant legal test of capacity (see below), and then consider whether the client can provide you with instructions on what they wish to do.
Even if you’re satisfied that your client has the necessary mental capacity to make a specific decision, you may still need to watch out for any signs that the client is subject to undue influence or undue pressure (see the section on influence and undue influence in our guidance on meeting the needs of vulnerable clients).
If your client lacks capacity to instruct you, then your role, obligations and responsibilities are different from when you are acting for a client with capacity. See If a client lacks capacity to give you instructions below.
The High Court in Walker v Badmin  All ER (D) 258, which concerned a challenge to the testator’s will after they died, reviewed various conflicting decisions on whether the correct test of capacity is the MCA 2005 test or the test that was established in the case of Banks v Goodfellow QBD 1870.
The court concluded that the Banks v Goodfellow test is the correct test. Notwithstanding this, the MCA 2005 sets out a process to work out whether a living person understands the relevant information. The Banks v Goodfellow test provides the relevant information which a testator would be expected to understand. This test is set out below.
The testator must:
Where a will is prepared for an older or seriously ill client, the courts have developed the ‘golden rule’, which should be considered as guidance only.
This rule is that the will should be approved or witnessed by a medical practitioner, regardless of how tactless or difficult it may be to explain this precautionary measure to your client (Templeman J in Kenward v Adams  CLY 3591; The Times, 29 November 1975).
The aim of the rule is to minimise or avoid disputes about the capacity of the testator after they have died. However, equally, a solicitor must not delay the making of a will, and can be liable to disappointed beneficiaries if they delayed the making of a will unreasonably.
There may be practical difficulties in obtaining a medical opinion as usually this does not form part of the medical practitioner’s NHS contract. You will need to get the client’s agreement to the assessment and to paying the additional cost of the opinion, and identify a suitably skilled medical practitioner who is able to undertake the opinion in the timescale required.
Obtaining an opinion does not prevent a subsequent challenge, especially if that opinion is from a medical practitioner who does not have specific expertise in assessing testamentary capacity. You should consider the purpose of the assessment, and whether your opinion is sufficient.
Ultimately, you must satisfy yourself that your client has testamentary capacity. You should therefore make and keep detailed attendance notes at the time, which confirm the:
The detailed contemporaneous attendance note of an experienced solicitor is consistently being held in the courts to be of very high evidential value. Ultimately it is the court which decides whether the client had or did not have capacity.
This is a specialist area of advice and practice, and you should seek specific guidance.
See Assessing capacity below for more details on instructing an expert.
As in the case of wills, there has been uncertainty about whether the common law test has been superseded by the MCA 2005 test for lifetime gifts.
The High Court in Kicks v Leigh  EWHC 3926 (Ch) reviewed the conflicting case law and concluded that the common law test is the correct test. As with the test for capacity to make a will, an appellate court might reach a different conclusion in due course.
The common law test is set out in Re Beaney  2 All ER 595 which says that the degree of understanding needed to make a valid lifetime gift depends on the size and nature of the gift.
If the subject matter and value of the gift is trivial in relation to the donor's other assets, a low degree of understanding is sufficient. However, if the effect of the gift is to dispose of the donor’s only asset of value and so pre-empt the devolution of their estate under their will or on their intestacy, the donor must have the same degree of understanding as they would need for making a will.
The donor has to understand the claims of all potential donees and the extent of the property to be disposed of.
For more information see our practice note on making gifts of assets.
Formally, the test of capacity to conduct proceedings will vary according to the type of court. However, as the Supreme Court has made clear in Dunhill v Burgin  UKSC 18, there is unlikely to be any real difference whether the test is the statutory test applied under the MCA 2005 (as is applied in civil proceedings) or the common law.
The key question is set out in the judgment of Chadwick LJ in Masterman-Lister v Brutton & Co  All ER 162, and is whether:
“a party to legal proceedings is capable of understanding, with the assistance of such proper explanation (in broad terms and simple language) from legal advisers and other experts as the case may require, the matters on which their consent or decision was likely to be necessary in the course of those proceedings.”
This test applies to the proceedings as a whole and not at each step in the conduct of the proceedings (Masterman-Lister v Brutton & Co  3 All ER 162, confirmed in Dunhill v Burgin  UKSC 18).
The test of lack of capacity to conduct proceedings is the statutory test under the MCA 2005. However, the common law principles are also helpful in applying the statutory test.
Capacity depends on time and context. The question is always whether the litigant has capacity to conduct the particular proceedings that they are involved in, and not other proceedings or their ability to make decisions in general (Sheffield City Council v E and another  Fam 326 per Munby J at para 38).
When assessing a client’s capacity to conduct civil proceedings, think about whether the client can:
For a client to have capacity to approve a compromise, they would need:
The Supreme Court also made clear in Dunhill v Burgin that the test must be applied to the claim that the party in fact has, not to the claim as formulated by their lawyers.
If your client is a party to but lacks capacity to conduct proceedings in the County Court, High Court, Family Court or Court of Protection, a litigation friend must be appointed to give instructions and conduct the proceedings on their behalf (Part 21 Civil Procedure Rules 1998, Part 15 Family Procedure Rules 2010, Part 17 Court of Protection Rules 2017).
The procedures vary depending on the court or tribunal. In the case of the Court of Protection, the court may appoint an accredited legal representative (in welfare cases only) instead of a litigation friend. See our practice note on accredited legal representatives in the Court of Protection.
It is for you to decide whether a client has capacity to instruct you and whether you can accept and act on the client’s instructions.
Although the MCA 2005 guiding principle is the presumption of capacity, the SRA’s Principle 7 requires that you act in your client’s best interests. Under paragraph 3.4 of the SRA’s Code of Conduct for Solicitors, RELs and RFLs, you must consider and take account of your client's attributes, needs and circumstances. As such you must satisfy yourself about their capacity if you have any doubts.
You must apply the relevant legal test for each transaction at the time the client needs to make the decision.
Your responsibility is to identify what the client needs to understand, support the client in the decision making process and record in writing how this was achieved, including the client’s verbatim answers to questions raised.
If you're not able to form a view about the client’s capacity or an assessment is required for court purposes, such as an application to the Court of Protection, you should seek the opinion of an appropriately skilled and qualified professional.
Your client might have had contact with their local authority social services department which may have already completed an assessment of capacity for the relevant issue, such as where the client lives or who they have contact with. The local authority should share this with you free of charge upon request (subject to your client's consent, or if it's in their best interests if they lack capacity to consent). It provides a good reference point in deciding whether you will need to arrange a further professional opinion on your client's capacity.
Ultimately it is a court that decides whether the client has or does not have capacity, taking into account the evidence and various opinions (Masterman-Lister v Brutton & Co (Nos. 1 and 2)  EWCA Civ 1889).
How and when you see your client may be important. For example, capacity can change significantly over the day. You could choose the time of day when the client is most alert and see them where they feel most comfortable. To put your client at ease, you might first chat about other matters. If possible you should assess the client’s capacity without the presence of any person who has an interest in the outcome.
It may be useful to observe how any relative or friend who has accompanied the client behaves towards them, and vice versa. This may identify whether there is the risk of undue influence or pressure.
It can be helpful to know from other sources (such as family or carers) something of the client’s family background and career so that you can verify the client’s recollection. You should also ask a few questions about current affairs and past events.
If dealing with a will instruction, it is also helpful to have previous testamentary dispositions to hand, so that you can consider the current instructions in light of any previous instructions.
You should prepare and keep detailed notes when you see your client. It’s also helpful to record the questions you ask them and their response, using their own words if possible.
At any subsequent interview you should discuss some of the same matters and see if what the client says is consistent. You should also seek detailed instructions again. If they are materially different there’s a good chance that the client lacks capacity in respect of that particular transaction.
Remember that you’re testing the client’s understanding of the decision to be made at the time it is made, not whether you agree with the client.
See also the guidance on assessing capacity in Chapter 4 of the MCA 2005 Code of Practice and in our guidance on financial abuse.
If you need to get an expert opinion you should tell your client about:
If your client is a party to proceedings you may need the court’s permission to get an expert opinion.
When getting a medical or other expert opinion you must provide the client's written consent or confirm that they have agreed to be assessed.
You will need to find a suitable professional who is willing and skilled to do an assessment and form an opinion, in the time required. Agree with the expert if and how they will be paid, and tell the client about the cost.
When making an application to the Court of Protection, the assessment of capacity form (COP3) must be completed by a 'practitioner', which could be a psychologist, psychiatrist, or other registered medical practitioner. In some circumstances it can be completed by a registered therapist such as a speech therapist, occupational therapist or social worker. In these cases, it is not always possible to obtain your client’s consent to the assessment.
Explain clearly to the expert:
Ask the expert to set out their opinion on how the client’s condition may affect their ability to make the decision in question, giving reasons for their conclusions. Actively chase the expert for the report, if there is any delay.
Regarding the fee, it is not part of the contract for professionals working within the NHS to undertake this work, unless it is directly linked to their NHS role. For example, a doctor would be required in their NHS role to form a view of the person’s capacity to consent or refuse consent to medical treatment, but not to form a view about the person’s capacity to make a will.
The additional information you will need to provide depends on the circumstances. For example, to assess capacity to make a will, the professional will need to know (as a minimum):
In some circumstances, it may be more relevant to get an opinion from a professional other than a medical practitioner, such as a social worker, clinical psychologist or speech and language therapist. This will depend on the client’s particular condition and the decision in question. However, the same considerations apply for opinions from all appropriately qualified professionals.
A client might object to you getting a report. If this happens and you still have serious concerns that the client lacks capacity to provide you with instructions, you should take all reasonable steps to encourage your client to get a report. If they still refuse, you must explain to your client in writing that you are unable to act for them, or to continue to act without a report. You must also explain the potential legal consequences, such as a subsequent challenge and the transaction being set aside by a court.
If proceedings are being contemplated, or if you are concerned your client has lost capacity during proceedings, you can apply to the court for a determination of whether the client lacks capacity to conduct the proceedings. The court may then order an assessment.
However, if the client refuses to undergo medical assessment then there is no power to order them to comply with an assessment of capacity.
In some cases the judge will have to decide on capacity without the benefit of any external expertise, although the courts have emphasised that judges should be slow to do so because of the serious consequences for the person (Baker Tilly v Makar  EWHC 759 (QB)).
The Official Solicitor has a standard form of report (Certificate of Capacity to Conduct the Proceedings) for recording the assessment of an adult’s mental capacity to conduct their own proceedings where that adult is a party or intended party to proceedings in the Family Court, the High Court, a county court or the Court of Appeal. The certificate has guidance notes for the assessor and can be sent with the letter of instruction.
If you consider that a potential client lacks capacity to give you instructions, you may be entitled to decline to act on their behalf. If you do wish to act on their behalf, you must first make sure that you can identify a person who has the authority to give you instructions (see Taking instructions on behalf of a client who lacks capacity).
For an existing client, generally a retainer terminates by operation of law when the client loses the capacity to give or confirm instructions. However, there are exceptions to this rule, in particular where the retainer has provided for the potential loss of capacity. See Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust  EWCA Civ 18.
Where an existing client loses capacity to instruct you, you should as far as practicable, take action to protect your client’s interests. As set out below, if you continue to act, you need to make sure that you have identified a person who can give you instructions.
If you are still unsure what to do you should contact the SRA Ethics Helpline.
You may be able to act, or continue to act, on behalf of a client lacking capacity to instruct you by getting your instructions from a litigation friend, attorney or court appointed deputy.
You may act under the instructions of an attorney appointed under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA), provided the decision is within the scope of their authority.
You may act under the instructions of a court appointed deputy, depending upon the scope of the deputy’s authority.
You may continue to conduct legal proceedings on the client’s behalf, acting on the instructions of a litigation friend appointed by the court. Deputies have a priority claim to acting as a litigation friend, but ultimately, it is up to the court who should be appointed (Civil Procedure Rules Pt 21.4).
Where there are no current proceedings, but where proceedings are contemplated, you may be able to identify a third party who can give instructions on the client’s behalf, as a proposed litigation friend. The proposed litigation friend can sign an application for legal aid on behalf of the client. See Regulation 22 of the Civil Legal Aid (Procedure) Regulations 2012 and paragraph 3.12 of the Standard Civil Contract 2014.
Rule 17.10 within the Court of Protection Rules 2017 allows the Court of Protection in some cases to appoint an accredited legal representative to act for a client without a litigation friend. See our practice note on accredited legal representatives in the Court of Protection.
See the section on the role of agents, advocates and appropriate adults in our guidance on meeting the needs of vulnerable clients.