Historic and disputed decisions
Retrospective capacity assessments
An independent opinion about a person’s capacity at an earlier point in time, based on the available contemporaneous evidence.
A retrospective opinion may be requested when a decision is challenged after the event, including where a person has died or can no longer participate in a direct assessment. The strength and limits of any opinion depend on the quality, timing and completeness of the available evidence.
Evidence that may be relevant
- GP, hospital, mental health and care-home records
- Solicitors’ attendance notes and correspondence
- The Will, earlier Wills and drafting instructions
- Statements from people who knew or met the person
- Financial, social and family context
- Any previous cognitive or capacity assessments
Preliminary and full opinions
Where appropriate, a limited preliminary review may be considered before a full expert report. Whether this is useful depends on the records available and the question being asked. The scope, limitations, fee and whether further work could build on that review will be agreed in advance.
A balanced, evidence-based approach
A retrospective opinion cannot recreate a face-to-face assessment. The report identifies the evidence relied upon, inconsistencies or gaps, alternative interpretations and the limits of the conclusions that can properly be drawn.