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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
What decisions can a COP3 cover?
A COP3 can cover any decision the Court of Protection is being asked to decide or delegate. Most commonly that is capacity to manage property and financial affairs for a deputyship application, and capacity to make specific welfare decisions such as where the person lives, their care arrangements or contact with others. It can also address capacity to make a statutory will, to make gifts, to litigate, or to sell a particular property. Because capacity is decision-specific under the Mental Capacity Act 2005, the COP3 must address each decision in the application separately rather than giving one general opinion.
Start with the precise decision
A defensible assessment begins by recording the decision in ordinary language. In this guide, the practical question is whether the person can make the specific decision or decisions identified in a Court of Protection application. That question should shape the evidence gathered, the conversation with the person and the wording of any report.
Apply the Mental Capacity Act test to this decision
The Mental Capacity Act 2005 requires a structured approach. The person must be presumed to have capacity unless lack of capacity is established. They must be supported to make the decision where practicable, and an unwise decision is not enough on its own. The assessment then asks whether an impairment of, or disturbance in the functioning of, the mind or brain causes the person to be unable to make this decision.
Identify the relevant information
For this topic, relevant information commonly includes the order sought, the decision before the court, the information the person must understand for each decision, the likely consequences, available options and how the person communicates a choice. The relevant information should be tailored to the person’s actual circumstances. It should not be copied from a generic template if the person’s options, risks or legal context are different.
Gather evidence before drawing conclusions
The assessment is stronger when the evidence is organised before the conclusion is reached. Useful evidence may include the COP1 application, COP3 Part A, medical and care records, professional instructions, family or deputy information, and direct assessment evidence. Where records are missing, contradictory or out of date, the report should say so rather than overstate the certainty of the opinion.
Record practicable steps and communication support
The person should be given a meaningful opportunity to make the decision. This may involve simple language, written summaries, visual aids, additional time, breaks, support with hearing or sight, an interpreter, a familiar setting or a carefully timed appointment. The report should explain what support was tried and whether it helped.
Analyse use and weigh, not just understanding
Many capacity disputes turn on whether the person can use or weigh information, not whether they can repeat it. The assessor should consider how the person reasons through benefits, risks, alternatives and consequences. For cOP3 Mental Capacity Assessment, this means looking at the person’s own explanation and whether any impairment prevents them from weighing the material information.
Consider risk, pressure and vulnerability carefully
Risk features should be recorded without turning them into shortcuts. Common issues in this area include vague decisions, incomplete Part A information, unsupported conclusions, copied generic wording, stale evidence and failure to list multiple decisions separately. The assessor should distinguish vulnerability, disagreement, family conflict and safeguarding concerns from evidence that the person is unable to make the decision.
What a strong report should contain
A strong report should include the instruction, the specific decision, the legal framework, the relevant information, evidence reviewed, practicable steps, direct assessment findings, functional analysis, causation and a clear conclusion. It should also explain any limitations, such as missing evidence, refusal to engage, fluctuating presentation or the need for further legal advice.
Key takeaway
A COP3 must be current, decision-specific and reasoned. It is court evidence, not an informal opinion. The safest approach is disciplined and evidence-led: define the decision, tailor the relevant information, support the person, apply the functional test and explain the reasoning clearly.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for COP3 Mental Capacity Assessment?
The evidence should match the decisions being covered. For a property and affairs application that means financial records and examples of recent money management; for welfare decisions it means care records and evidence about residence or contact; for a statutory will it includes the estate details and the proposed will instructions. The assessor should record which documents were reviewed for each decision.
When is a formal assessment for COP3 Mental Capacity Assessment useful?
A single application can ask the court to decide several things, and the COP3 must address each of them. A combined assessment is useful where deputyship, a statutory will or a property sale are being sought together, because one properly structured assessment can evidence all of the decisions without repeated visits to the person.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Need a COP3 covering specific decisions?
Nellie Supports completes decision-specific COP3 assessments across England and Wales, covering single or multiple decisions in one properly structured report, peer reviewed before delivery. Call 0333 987 5118 or visit the COP3 assessment service page.