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Retrospective Mental Capacity Assessments

Mental Capacity Ltd - Mental Capacity Assessment

A standard mental capacity assessment (also known as the two-stage test) is usually carried out for a specific decision at a specific time. It is completed prior to the decision being made if there is either a ‘reasonable belief’ that an individual may lack capacity, or to reduce the risk of someone challenging the person’s capacity to make the decision at some point in the future.

Meanwhile, a retrospective mental capacity assessment refers to a traditional assessment of capacity for a specific decision, but for a decision made historically. Examples might include a Lasting Power of Attorney submission signed and submitted the previous month, or a financial gift made to a family member or friend several years in the past.

While these assessments can be useful, a retrospective assessment will never be as good as a standard assessment carried out at the time a decision is being made. We therefore recommend avoiding retrospective mental capacity assessments if at all possible.

Issues with retrospective assessments

One of the most common misconceptions around retrospective assessments is that if a person can make an informed decision today, then this means that they also had capacity to make the same decision at some point in the past.

However, this is simply not the case, as the individual may have had a short or long-term impairment of their mind at the time that was impacting their decision-making. Or, outside the scope of the Mental Capacity Act (2005), they may also have been experiencing undue influence from a person (or persons) that a retrospective assessment will not be able to assess.

Information required for a retrospective assessment

Given the undoubted challenges associated with retrospective assessments, a Mental Capacity Assessor will require a greater volume of information for a retrospective assessment than they would for a standard test.

This is to help ensure they have sufficient evidence to apply the mental capacity assessment to the individual now, and then consider in the balance of probabilities whether it is reasonable to apply this outcome to a decision made at a previous point in time. Or equally, if unable to make the decision now, what evidence is there to prove, in the balance of probabilities, that they would have been able to make the decision then.

This may include, but is not limited to:

  1. Evidence to prove cognitive functioning at the time, including that of being healthy and well, free from infection or any condition that could impair decision-making. This may include a doctor’s consultation, health care records, statements from family/friends or similar. The more information provided, the stronger the outcome of the assessment will be.
  2. Evidence to support the individual’s informed decision-making and rationale for said decision at the time of the event. 
  3. Evidence to prove the person was free from influence.


Clearly, retrospective mental capacity assessments are not the ideal option, but they are sometimes necessary. In order to ensure such assessments are conducted thoroughly, and to a high standard, it is absolutely essential that all of the required information is provided, and that you work with an assessor who is familiar with the challenges that a retrospective assessment can bring.  

For more information, including support with complex and/or retrospective assessments, please contact us.

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