This is one of the most common questions I get asked, and the answer isn’t always straightforward. It depends on the decision being made and what the assessment is actually for.
What the Mental Capacity Act says
The Mental Capacity Act 2005 doesn’t list job titles or qualifications for who can assess capacity. Instead, it sets out a legal test that applies to whoever is making or supporting a specific decision.
For everyday choices, the person helping at the time can assess capacity if they apply the principles properly. For bigger, more complex decisions, best practice says a trained professional should carry out a formal assessment and write it up clearly.
That might be a social worker, GP, psychiatrist, psychologist, nurse, or occupational therapist, depending on the decision and the person’s circumstances.
Simple decisions vs serious ones
There’s a big difference between choosing what to have for lunch and deciding whether to sell your house.
For everyday decisions (what to wear, what to eat, small purchases), the person providing care or support can assess capacity at the time. They just need to follow the Mental Capacity Act principles and keep it specific to that decision at that moment.
For serious decisions (moving into a care home, selling property, making a will, long-term care arrangements, or major financial decisions), you need a trained professional. Someone who understands the law, can evidence their reasoning, and produce a report that stands up to scrutiny.
For legal decisions (like Court of Protection deputyship applications using Form COP3), the assessor must be what the court calls an “appropriate professional”. That means someone with proper Mental Capacity Act knowledge and experience who can produce a court-ready report.
Why independent assessors matter
In my experience, solicitors and professional deputies often instruct independent social workers when there’s a dispute, tight deadlines, or concerns about neutrality.
Local authorities and NHS teams are sometimes limited by resources or conflicting priorities. An independent social worker brings focused expertise, clear independence, and detailed written evidence that meets court standards.
I’ve worked on cases where families needed a fresh assessment because previous reports weren’t detailed enough or didn’t answer the right questions. That’s where independence really counts.
What families need to know
If you’re making everyday decisions for someone, you can assess their capacity yourself as long as you follow the Mental Capacity Act test properly. Keep it decision-specific and time-specific.
But if the decision involves the court, significant finances, serious medical treatment, or there’s likely to be a dispute, get a professional involved. Ask for a clear written report that references the Mental Capacity Act.
One thing to note: families cannot complete the professional sections of forms like Part B of the COP3. That section must be completed by a qualified medical or social care professional who can confirm their qualifications and independence.
When to get in touch
If you’re unsure whether you need a formal assessment, or you need an independent report for legal proceedings, I’m happy to talk it through with you. Sometimes a quick conversation can clarify what’s needed and save time later on.
You can reach me on 07572 948553 or message me using the form below.
Questions About Mental Capacity Assessments
Can a family member assess someone’s mental capacity?
Yes, for everyday decisions like choosing meals or what to wear, a family member or carer can assess capacity at the time. For serious decisions involving finances, property, healthcare, or legal matters, you need a qualified professional like a social worker, GP, or psychiatrist to carry out a formal assessment.
Does a GP have to do the capacity assessment?
No, a GP doesn’t have to do it. Any appropriately trained health or social care professional can assess capacity, including social workers, psychiatrists, psychologists, nurses, or occupational therapists. The key is that they understand the Mental Capacity Act and can apply the legal test properly for that specific decision.
What makes someone qualified to complete a COP3 form?
The person completing Part B of a COP3 form must be an “appropriate professional” with Mental Capacity Act knowledge and experience. This is typically a social worker, doctor, or other registered healthcare professional who can demonstrate their qualifications and independence. Family members cannot complete this section, even if they know the person well.
Why would we use an independent social worker instead of the local authority?
Independent social workers bring impartiality, especially when there are disputes, concerns about bias, or tight deadlines. They work solely for the client or instructing solicitor, not the council or NHS, so their assessment is free from organisational pressures. Their reports are detailed, legally compliant, and designed to stand up in court proceedings.
How do I know if the decision needs a professional assessment?
If the decision involves the Court of Protection, significant money, property, serious medical treatment, or there’s likely to be a dispute, get a professional involved. Everyday decisions like choosing clothes or meals can be assessed informally by whoever is supporting the person at the time. When in doubt, seek professional advice early.
Can the same person assess capacity for different decisions?
Yes, but each decision needs its own separate assessment because capacity is decision-specific. Someone might have capacity to choose what they eat but lack capacity to manage their finances. The assessor needs to apply the Mental Capacity Act test freshly for each specific decision at that point in time.
What happens if professionals disagree about someone’s capacity?
Disagreements happen more often than families realise, especially between GPs, nurses, solicitors, and social workers. When this occurs, an independent assessment can provide clarity and a detailed explanation of the reasoning. If the matter involves the Court of Protection, the court will review all the evidence and make a final determination.
