When applying for an order from the court of protection, a mental capacity assessment for the specific decision is a general requirement.
This mental capacity assessment is decision specific, for example, an application for deputyship for finances or an application for a statutory will to be created.
The principles of the Mental Capacity Act (2005) state we should always assume someone has capacity unless proven otherwise, and we approach every assessment from this viewpoint.
The majority of decisions assessed for the court of protection are based upon the two-stage test outlined in the Mental Capacity Act (2005)
Stage 1 – Is there an impairment of or disturbance in the functioning of a person's mind or brain? If so,
Stage 2 - The MCA says that a person is unable to make a specific decision if they cannot do one or more of the following four things:
-
Understand information given to them
-
Retain that information long enough to be able to make the decision
-
Weigh up the information available to make the decision
-
Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
In those instances where the outcome of the assessment is that the person does lack sufficient mental capacity to make the specific decision then the court requires a Social Worker or other Health and Social Care Professional to complete form COP3.
Form COP3 (an 'assessment of capacity') is used to submit an expert opinion about someone's mental capacity as part of an application to make decisions for them.
Part A of the COP3 is generally completed by a solicitor or other legal professional representing you. If you don't have someone representing you, then Part A of the COP3 form is usually completed by the applicant directly.
Nellie Supports Social Workers are experts in completing mental capacity assessments and in those case where someone is deemed as lacking sufficient mental capacity they can ensure COP3 forms are complete fully and to the standards the court of protection requires.
