GUIDES
A COP3 may need clarification where it addresses the wrong decisions, omits support or reasoning, or no longer reflects the person’s circumstances. Read the court’s actual request before commissioning replacement evidence; not every question requires a new assessment.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
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A COP3 may need clarification where it addresses the wrong decisions, omits support or reasoning, or no longer reflects the person’s circumstances. Read the court’s actual request before commissioning replacement evidence; not every question requires a new assessment. This guide covers the relevant evidence, support, process and limits in England and Wales.
A COP3 may need clarification where it addresses the wrong decisions, omits support or reasoning, or no longer reflects the person’s circumstances. Read the court’s actual request before commissioning replacement evidence; not every question requires a new assessment.
COP3 must identify the decisions in the application and address each one. A description such as confusion, dementia or needing help does not by itself show inability to make those decisions. Check that the numbering and reasoning correspond with Part A.
A diagnosis may help explain the concern but cannot substitute for evidence of the decision-making abilities. The form asks about understanding, retention, use or weighing and communication, with an explanation for each answer. Missing reasoning may call for clarification; the court decides what additional evidence is needed.
If an inability is found, explain why an impairment of, or disturbance in the functioning of, the mind or brain causes it. Identifying a condition and a difficulty separately does not show the link. A reasoned explanation supports scrutiny without guaranteeing that the evidence will be accepted.
COP3 asks for current information. Its adequacy depends on the relevant decision, any changes and the court’s directions, rather than a universal expiry date. Ask the assessor whether an update or new assessment is needed if circumstances have materially changed.
The Act requires that all practicable steps are taken to help the person decide before they are treated as unable to do so, and the court expects to see them. Forms are questioned where there is no record of how the assessment was adapted: whether the person was seen at their best time of day, whether information was simplified and broken down, whether communication aids or an interpreter were used, and whether a second visit was offered where presentation fluctuated. One line stating that support was provided is assertion, not evidence.
Different abilities can coexist: fluent speech or independence in daily life does not establish capacity for every financial or welfare decision. Explain apparently inconsistent evidence and whether it concerns the same decision, support and time. Correct factual mistakes and address genuinely contrary findings.
The assessor should explain their qualifications, training, experience, relationship with the person and freedom from conflict. A treating relationship does not automatically disqualify them, and external instruction does not automatically establish independence. The issue is suitability and the quality of the evidence for this question.
Before filing, check the decisions, relevant information, support, findings, causal explanation, dates and signature. Provide relevant records and disclose gaps. If the court asks questions, respond to the directions through the appropriate person rather than assuming the entire assessment must be replaced.
A complete, current and decision-specific COP3 helps the court understand the evidence. It supplies an opinion; the court decides capacity, the need for further evidence and whether an order should be made.
No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test.
Keep the letter of instruction, the records reviewed, the assessor's notes and the reasoning behind each conclusion. When a COP3 is questioned, the fastest resolution is usually a prompt, well-evidenced response from the original assessor, which is only possible where the underlying file is complete.
Read the court’s concerns first. A correction, explanation or focused update from the original assessor may suffice; a new assessment is appropriate where the evidence or circumstances require it. Seek advice on the directions and time for responding.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Read the court’s request and identify whether it concerns an omission, a factual error, reasoning or changed circumstances. Ask the assessor to address that issue, and obtain advice before replacing the form or assuming the application has failed.
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