When you think P has capacity

In England and Wales, the Mental Capacity Act 2005 starts with a clear rule: a person aged 16 or over must be assumed to have capacity unless it is established that they lack capacity. In Scotland the Adults with Incapacity (Scotland) Act 2000, in Northern Ireland the Mental Capacity Act (Northern Ireland) 2016, and in Ireland the Assisted Decision-Making (Capacity) Act 2015 have similar starting points. Use the jurisdiction switcher at the top of the page.

Capacity is also decision-specific and time-specific. A person may be able to choose what they eat and wear but not manage a large financial decision. They may have capacity in the morning but not after a seizure or when in pain. The test is about the particular decision, at the particular time, with the right support.

The first question is not usually 'Do we go to court?' but 'What exactly is the assessment saying, and how was it done?' Most families challenge a capacity assessment by asking for the paperwork and checking the process.

1. Ask for the assessment in writing. If you do not have it, email and ask for the full capacity assessment, the name and qualifications of the assessor, and the date. You can do this politely but firmly.
2. Read the decision being tested. It should be specific: 'capacity to decide where to live', not just 'capacity'. Vague wording is a red flag.
3. Check for diagnostic overshadowing. This is when a professional says, 'Because P has autism / learning disability / dementia, they cannot decide.' That is not the legal test. The test is whether P can understand, retain, use and weigh the information and communicate the decision.
4. Ask what support was tried. Were they seen at a good time of day? Was their communication method used? Was a trusted person present? Was enough time allowed for processing?
5. Write back with your concerns. Keep it factual and dated. Ask them to explain how their conclusion meets the legal test for the specific decision.

You are not being difficult. You are asking for the law to be applied. That is exactly what the court will do if the case gets there.

Courts decide on evidence, not opinions. The evidence you gather now may be the difference between a quick resolution and a long fight. Keep everything organised and use P's initials only where possible.

An independent capacity assessment can carry real weight. A speech and language therapist, clinical psychologist, learning disability nurse or independent psychiatrist can assess whether P understood the decision with the right support. You may need to pay privately, but legal aid may cover it in some cases.

You do not need to prove P has capacity. You need to show that the other side has not proved P lacks capacity for the specific decision. This is an important difference.

• Ask for the evidence behind the conclusion. The assessor must explain how they reached the finding, not just state it.
• Check whether P was helped to understand. The law says all practicable steps must be taken before deciding someone lacks capacity. Was a communication passport used? Was information given in Easy Read or video? Was P given time to process?
• Separate the 'what' from the 'who'. If P disagrees with the professional's plan, that is not necessarily incapacity. P is allowed to make a decision you or the professional disagree with.
• Point out blanket or vague findings. If the report says P 'lacks capacity generally' or 'does not have capacity due to their diagnosis', it is not applying the legal test correctly.
• Request a fresh assessment. You can ask for another assessment by a different professional, especially if the first one is flawed, old, or done in the wrong circumstances.

Keep your tone measured and factual. The court is not interested in how frustrated you are with the professional. It is interested in whether the Mental Capacity Act was followed.

You do not have to try every other option first. If the decision has serious consequences and the disagreement cannot be resolved, you can apply to court. The court's job is to decide whether P lacks capacity for that specific decision and, if so, what is in P's best interests.

Situations that often end up in court include: where P should live, whether contact should be restricted, serious medical treatment, challenging a deprivation of liberty (DoLS), and who can manage P's property and money.

1. Decide what you want the court to decide. Is it just about capacity, or also about the best interests outcome? Be clear.
2. Complete the right forms. Usually a COP1, COP1B (welfare) or COP1A (property), and a COP3 if capacity is disputed. You can also ask the court to decide capacity as a preliminary issue.
3. Use COP24 for your evidence. Your witness statement should explain your evidence that P has capacity, or that the assessment was wrong. Keep it factual and chronological.
4. Notify everyone entitled to know. This includes the local authority, care provider, any deputy, and family members. Missing a notification can delay or collapse the case.
5. Get legal advice early. Welfare cases can be legally aided. In a deprivation of liberty case P may be entitled to non-means-tested legal aid through the Official Solicitor.

Capacity disagreements are emotional. It is easy to make decisions that feel right in the moment but harm the case later. Try to avoid these.