GUIDES
To arrange capacity evidence for the Court of Protection, identify the decisions in the application, complete Part A of the current COP3 and approach an appropriate assessor for Part B. Agree the relevant records, support, timing and fee before the appointment.
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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To arrange capacity evidence for the Court of Protection, identify the decisions in the application, complete Part A of the current COP3 and approach an appropriate assessor for Part B. Agree the relevant records, support, timing and fee before the appointment. This guide covers the relevant evidence, support, process and limits in England and Wales.
To arrange capacity evidence for the Court of Protection, identify the decisions in the application, complete Part A of the current COP3 and approach an appropriate assessor for Part B. Agree the relevant records, support, timing and fee before the appointment. The assessor supplies evidence and the court decides capacity and the order sought. A deputy’s powers come from that order, rather than the assessment itself.
The first step is to write down the specific decisions the application concerns, because everything that follows depends upon them. The Mental Capacity Act 2005 assesses capacity decision by decision and at the time the decision needs to be made, so a diagnosis is the starting point of an assessment as opposed to its conclusion. Most applications concern property and financial affairs, health and welfare, or both.
The current COP3 is designed to record the assessment, with separate sheets where necessary. A narrative report or additional evidence may help if the issues need fuller explanation or the court directs it. Ask what extra work is required rather than assume high value or family disagreement automatically makes the form insufficient.
The form recognises appropriate medical and social care professionals. The assessor should explain relevant qualifications, training and experience, their professional relationship and freedom from conflict. A GP or treating professional may be suitable; an external assessor is not automatically necessary or suitable for every question.
The assessor will need the person's relevant history, so collect what is available before the appointment: medical summaries, care plans, cognitive screening results, any previous capacity assessments and, for financial applications, an outline of the assets, income and liabilities. Records do not decide capacity, however they allow the assessor to identify the impairment and to test understanding against the person's actual circumstances.
The assessment is a structured conversation, held wherever the person is most comfortable and usually in their own home or care setting. The assessor must take practicable steps to support the person to make the decision, which may mean simplifying information, using visual aids, choosing a better time of day or involving someone the person trusts. The person's own reasoning is recorded, not merely the assessor's conclusion.
For each decision, explain the person’s ability to understand, retain, use or weigh relevant information and communicate, the support provided and whether any inability is caused by impairment or disturbance. COP3 asks for reasons and current information; it does not ask a diagnosis to determine the answer.
The COP3 is filed alongside the application form and the supporting documents required under the Court of Protection Rules 2017, including the deputy's declaration and the information about the person's assets. Part A is completed by the applicant or their solicitor and Part B by the assessor, so build the assessment into the timetable rather than leaving it until the papers are otherwise ready.
The report records the position assessed at its stated time. The court’s order defines the deputy’s authority, and section 20 prevents a deputy deciding a matter the person can decide. If relevant abilities change or recover, consider current evidence and seek advice on varying or discharging the order where needed.
Arranging a Court of Protection assessment is largely a matter of sequence. Define the decisions, choose the right level of report, instruct an assessor who can evidence the causal link, and file the form with the application rather than after it. Most delays and rejections trace back to a step taken out of order.
Timescales depend upon the person's availability and the records needed. In practice the assessment visit is arranged first, the report follows, and the application is then filed. Building the assessment into the timetable early, as opposed to treating it as the final step, is the most effective way to avoid delay.
A GP can complete Part B, although many decline because of the time involved and the decision specific expertise required. A care home manager can only do so if they hold the relevant professional registration and competence, and there is an obvious difficulty where the assessor also provides the person's care.
In an ordinary private assessment, seek the person’s engagement and explore whether timing, setting or communication explains refusal. Refusal alone is not evidence of incapacity. If court evidence is needed and engagement remains difficult, explain the steps and limits and obtain advice on directions; do not make a blanket claim about all court powers or replace missing evidence with assumption.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Use the official forms route to obtain the current COP3 and confirm which supporting documents your application needs. Explain the decisions and support needs to the assessor, and keep the assessment and court application timetables distinct.
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