Following on from my last post on mental capacity and undue influence, I wanted to share a recent case that shows exactly why the two questions so often need to be considered together, and why the right assessor matters as much as the assessment itself. The details below have been anonymised, but the underlying issues are ones I see regularly in this kind of work.
I was contacted by a solicitor to provide a second opinion mental capacity assessment in relation to property and financial affairs. Concerns had been raised about the findings of a previous assessment, which had been described as inconsistent and had not given the solicitor the clarity they needed.
A Case That Needed Careful Consideration
The client was a young woman with a diagnosis of a learning disability who was highly capable of managing many aspects of her day to day life. She was articulate, able to communicate clearly and able to express her wishes, feelings and views without difficulty.
However, managing everyday tasks and communicating effectively are not, in themselves, evidence that a person has the capacity to manage complex financial decisions involving a substantial sum of money. The assessment needed to explore the client’s ability to understand, retain, use and weigh the relevant information required to make decisions about her property and financial affairs, rather than relying on assumptions based on her presentation or level of day to day functioning.
Following a thorough, person centred and evidence based assessment, I concluded that the client did not have the capacity to manage her property and financial affairs.
Looking Beyond The Assessment Itself
This case also demonstrated why mental capacity assessments, particularly those involving substantial financial assets, require more than an understanding of the Mental Capacity Act alone. My thirty years’ experience as a social worker, including extensive experience in adult social care, mental capacity, safeguarding and complex decision making, enabled me to consider the wider circumstances surrounding the client, not just the specific decision in front of me.
During the assessment process, I identified significant concerns that the client was potentially being financially exploited by people close to her. Her ability to communicate, her articulate presentation and her ability to manage many aspects of everyday life could easily have masked the extent of her vulnerability to someone assessing capacity in isolation. A narrow assessment focused solely on whether she could answer questions about money may well not have identified the wider safeguarding risks that were actually present.
My social work background meant I could consider the person as a whole, her abilities, vulnerabilities, relationships, circumstances, support needs, and the potential risks associated with her financial situation, rather than treating the capacity question as something separate from everything else going on in her life.
Recommendations To Safeguard The Client
Alongside providing the solicitor with a comprehensive report setting out the evidence and rationale for my conclusion, I made a number of recommendations aimed at protecting the client’s welfare and financial interests going forward. These included a comprehensive review of her financial outgoings, to establish what payments were being made, whether they were necessary and represented value for money, and whether they were genuinely in her best interests.
I also recommended a comprehensive Care Act assessment, to obtain clear and up to date information about her care and support needs and how these could best be met, alongside consideration of an established and reputable social care provider to support her with day to day living tasks, promote her quality of life and provide a degree of independent support, helping to reduce the risk of future financial exploitation.
Further recommendations included independent advocacy and professional support, potentially from an independent social worker, to support her with financial decision making and enable her to participate as fully as possible in meetings with her financial deputy, along with appropriate communication with the financial deputy regarding any future concerns about potential financial exploitation or expenditure that did not appear to be in her best interests.
Why Specialist Experience Matters
This case demonstrates that a mental capacity assessment is not simply about asking a series of questions and reaching a conclusion about whether someone can make a decision. Where a person has a learning disability, is highly articulate and appears to function well in everyday life, the assessor needs the skill, experience and professional judgement to look beyond presentation and properly consider the specific decision being assessed.
Particularly where substantial financial assets are involved, the assessor also needs to recognise when there may be underlying safeguarding concerns, undue influence, financial exploitation or unmet care and support needs, exactly the overlap I wrote about in my last post on mental capacity and undue influence. My thirty years of social work experience allowed me to bring together specialist knowledge of the Mental Capacity Act with wider professional experience in safeguarding vulnerable adults, social care, risk assessment and complex decision making.
Bringing It Together
The result in this case was not simply an opinion about capacity. It gave the solicitor a clear, evidence based and person centred assessment, together with practical recommendations to help protect the client’s welfare, independence and financial interests going forward. Mental capacity assessments can have significant consequences for an individual’s finances, independence and future, which is exactly why they should be undertaken by professionals with the appropriate knowledge, experience and skills to assess the specific decision, understand the wider circumstances, and recognise potential safeguarding concerns when they are present.
Frequently Asked Questions
Why did a second opinion assessment reach a different conclusion to the first one?
The first assessment was described as inconsistent and had not given the solicitor the clarity required. A second opinion, carried out thoroughly and evidenced properly, gave a clear conclusion along with the reasoning behind it.
Can someone with a learning disability who communicates well still lack capacity for financial decisions?
Yes. Being articulate and capable in day to day life is not, on its own, evidence of capacity to manage complex financial decisions. Capacity has to be assessed specifically against the decision in question.
Why does a mental capacity assessment sometimes uncover safeguarding concerns as well?
A properly conducted assessment considers the person as a whole, including their relationships, circumstances and support needs, rather than only the specific decision being tested. This wider view can surface safeguarding issues, such as financial exploitation, that a narrower assessment might miss.
What kind of recommendations might follow a mental capacity assessment like this one?
Recommendations can go well beyond the capacity conclusion itself, including reviewing financial outgoings, arranging a Care Act assessment, considering additional care and support, independent advocacy, and clear communication with a financial deputy about any ongoing concerns.
Discuss A Case Or Book An Assessment
If you are managing a case where capacity, vulnerability or financial exploitation may be a concern, an early conversation can help determine the right next steps before important decisions are relied upon. Get in touch to discuss a case or arrange an independent mental capacity assessment.