GUIDES
A deputy must act within the order and cannot decide a matter the person can decide themselves. Keep capacity evidence proportionate and current, support retained abilities and seek reassessment when a particular decision or a change in circumstances calls for it.
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 deputy must act within the order and cannot decide a matter the person can decide themselves. Keep capacity evidence proportionate and current, support retained abilities and seek reassessment when a particular decision or a change in circumstances calls for it. This guide covers the relevant evidence, support, process and limits in England and Wales.
A deputy must act within the order and cannot decide a matter the person can decide themselves. Keep capacity evidence proportionate and current, support retained abilities and seek reassessment when a particular decision or a change in circumstances calls for it. COP3 supports an application, while ongoing authority is set by the order. An independent specialist report is not automatically required for every major decision.
Capacity evidence helps define and review the decisions the person can make. A deputy should use relevant existing information and obtain further assessment where justified, rather than rely on an old report for every new matter or commission a new report mechanically.
After appointment, consider whether the person can make the actual decision with support. The order does not remove all decision-making rights. A material change, uncertainty about a different decision or a court direction may require further evidence.
A property sale, gift or statutory-will application may require specific evidence and authority. Litigation and welfare issues raise distinct capacity and procedural questions. Confirm the deputy’s powers and the court’s directions before commissioning work.
Support the person to make decisions they can make and record their participation and wishes on matters they cannot decide. Use accessible information and practical assistance. Do not assume that needing help with one aspect of affairs justifies taking over all everyday spending.
Where there are signs of recovery or a changing presentation, review the relevant evidence and obtain reassessment if needed. A deputy cannot decide a matter the person can decide themselves. Seek advice on variation or discharge of the order rather than treating the original appointment as a permanent capacity finding.
Keep a clear record of significant decisions, authority, capacity considerations, participation, best interests and expenditure as required for supervision. A new specialist report is not the only possible evidence, and cannot guarantee that an OPG query will be resolved without further information.
Where accounts differ, record and consider them fairly and protect the person’s opportunity to speak. An external specialist may help where a conflict or complex question warrants it. Independent evidence does not necessarily resolve family disagreement.
Agree the particular decisions, relevant records, support needs, report format, timing and cost for each instruction. Consistent arrangements may help administration, but do not replace consideration of the individual or justify a claim that the court recognises a provider’s reports as a matter of course.
Keep the order and current decision-making abilities in view. Support retained choices, obtain proportionate evidence where needed and seek further authority for steps outside the powers held. An assessment informs those responsibilities without transferring them to the assessor.
It depends on the exact decision, the evidence available, the purpose of the report and whether the matter is family-led, professional, solicitor-led or court-related. An independent, decision-specific assessment matched to those factors carries the most weight.
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.
A report should identify the decision, time, information, support, findings, causal reasoning and limitations. Use formal specialist evidence where uncertainty, complexity or a direction warrants it. Major value or anticipated scrutiny alone does not make a new paid report mandatory.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Check the order, the particular decision and any evidence of recovery or fluctuation. Keep the person involved, seek proportionate clarification or reassessment where needed and apply to vary or discharge the order where appropriate.
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