Who Can Complete a COP3 form?
It will never happen to me
If you have stumbled across this blog by accident it’s likely that you already have doubts about the mental capacity of your loved one to look after their own affairs. It might be that such difficulties never occurred to you before your loved one became too confused to be able to make the decision to grant you authority to help with their welfare or financial affairs. Or, as we often see, you may have been desperately trying to persuade your loved one to take out a Lasting Power of Attorney for years, but your fiercely independent loved one refused to agree as like so many of us fell foul to believing that losing mental capacity is ‘something that will never happen to me’.
The frustration of others refusing to deal with you
In our role as mental capacity assessors we would argue from experience that not having legal authority to deal with the affairs of a loved one, is one of the most stressful situations for families that we come across. Doctors, Nurses, or Social Workers refusing to speak with you or call you back. The banks won’t deal with you, even worse they may even freeze your loved ones bank accounts once they have caught wind that they might be having problems with mental capacity. You might need to pay for urgent services or work on your loved ones home, or even sell a property to pay mounting care fees. However, even the most simple tasks like organising utility bills and paying for groceries can feel exasperating if you don’t have either a Property and Financial Lasting Power of Attorney in place nor a Property and Financial Deputyship Order, both of which allow you to deal with the property and financial affairs.
Lasting Power of Attorney or Deputyship
They grant roughly the same powers, so that you can then deal with the affairs of a person who does not have the cognitive ability to deal with these matters themselves. In contrast to a Deputyship, a Lasting Power of Attorney is an easier, and more cost effective option to set up and begin utilising. However, you have to have mental capacity (in accordance with The Mental Capacity Act 2005) in order to set up a Lasting Power of Attorney. Whereas a Deputyship can only be granted by the Court of Protection in cases where the person has lost mental capacity to manage their own affairs. Deputyships can be a bit more costly too, along with the Court of Protection having more oversight of Deputies to ensure that the person is adequately safeguarded.
A Lasting Power of Attorney or Deputyship may also be applied for to make decisions in the best interests of an individual for health and welfare decisions such as medical treatment or moving into a care home. It’s fairly common for applications for a Power of Attorney to be for both health and welfare, and property and financial affairs (applications for Lasting Power of Attorney are made to the Office of the Public Guardian). However, it is less common for the Court of Protection to grant a welfare Deputyship Order.
What is a COP3
A COP3 is a Court form which includes a specialist mental capacity assessment that is submitted to the Court of Protection when application such as for a Deputyship Order. The COP3 is an expert opinion as to the ability of the person to cognitively manage that area of their lives. At Thornton & Lee in addition to completing COP3 assessments for Deputyship applications, we also complete COP3’s for Statutory Will’s, Gifting applications, and removing a Trustee from a Trust applications.
Who can complete a COP3
The Court of Protection COP3 form is split into two parts. Part A is usually completed by a legal professional such as a Solicitor or Estate Planner, although the applicant can complete Part A themselves if they have a good eye for a form, and all the forms for applications to the Court of Protection are readily available to download for the public on the Government Website. Part B of the COP3 form can only be completed by an appropriate medical practitioner or social care professional with the relevant experience of assessing mental capacity. Historically, General Practitioners were often approached to complete a COP3 capacity assessment. However, due to the rising pressure on the health service, most General Practitioners seldom have the time to support these types of assessments, and those that are willing usually take many months to find the scope to complete the assessment. Additionally, most Local Authorities have also opted out of assisting with COP3 assessments, as they are equally snowed under addressing crisis cases and safeguarding. Our mental capacity assessors have extensive experience of completing all types of mental capacity assessments but in particular COP3’s, so you can be confident that not only will you be seen quickly, but that you are in trusted hands.
COP3 form updated by the Court of Protection in July 2023
At Thornton & Lee we very much welcomed the revision of the the COP3 form made by the Court of Protection in July 2023. The revised COP3 form has clearly set out how mental capacity assessors must evidence not only that the person is unable to understand, retain, weigh or communicate the relevant information for the specific decision, but also crucially the two step test of the Mental Capcity Act (2005) has been re-ordered to ensure that the mental capacity assessor evidences that the person cannot make the decision as a result of a cognitive impairment, thus the ‘causative nexus’ is met.
Other welcome additions to the new COP3 form include the mental capacity assessor setting out the relevant information the person must understand, and use, to conclude capacity. This aspect is far superior to its predecessor form, as too often inconsequential evidence such as the person being unable to recall their current age is included in the assessment conclusion, instead of their actual understanding and ability to use the relevant information for the decision in question.
At the Thornton & Lee we were also very pleased to see that mental capacity assessors must now evidence how they have supported the person to understand the relevant information. We can’t tell you how sad we find it when we have assessed a person previously assessed as lacking mental capacity only to discover that with the correct communication approach, they absolutely do have mental capacity.
Finally, with the surge in popularity of video assessments post the COVID-19 pandemic, the new COP3 form requires the mental capacity assessor to explain and justify (in keeping with the Mental Capacity Act Code of Practice) that any virtual assessments have not disadvantaged the person from having the maximum opportunity of being able to engage and understand the relevant information during the assessment process. Please note that Senior Judge Hilder has confirmed to the Court of Protection Property and Affairs User Group that the 6-month window for using the old COP3 form has now expired, and any COP3 assessments submitted on the old COP3 form (pre-July 2023) will be rejected unless they have “explicit confirmation that circumstances have not changed”.
How much is a capacity assessment for COP3?
At Thornton & Lee we hate paying for things twice. Which is why if your legal or financial advisor has suggested a mental capacity assessment for a Lasting Power of Attorney, but during the assessment, the mental capacity assessor concludes that unfortunately the donor lacks the mental capacity to proceed with a Lasting Power of Attorney application, then Thornton & Lee will complete a COP3 mental capacity assessment to apply for a Deputyship Order instead at no additional charge. Please see our fees for further information.
The Impact of Digitising the Deputyship Application Process?
A frequent frustration of those applying to become a Deputy to the Court of Protection is how long the process can take from start to completion which is when the Judge finally signs off the Order. With applications having regularly taken a year or more to complete. Common complaints have also included lost paper forms adding further timely delays with the previous paper form application process. The legal industry have been waiting with bated breath for the Governments recently released new ‘online Deputy Application’ which had promised the goal of making a smoother and shorter process for those seeking to become a Deputy.
Part of the new digitalised Deputyship process also includes notifying the individual the Order is for, and three interested parties of the Order before the application is made, which is aimed at reducing wait periods for these notifications to have taken place which had previously occurred after the application had already been submitted to the Court of Protection.
You can read more about applying to become a Deputy using the new online application on the Governments webpage here. Early reports from our legal colleagues seem to have improved efficiency and reduced time delays on Court Orders which is fantastic news. However, don’t worry if you are a member of the public worrying about having to do an online Deputyship application, as for the time being the Court of Protection will still be accepting paper form applications too.