Official Solicitor issues revised form used to address capacity to conduct proceedings

The Official Solicitor has issued a revised version of the form used to address (and where the person lacks the capacity, to explain in detail why that is the case) capacity to conduct proceedings.

Writing on his Mental Capacity Law and Policy Blog, Alex Ruck Keene KC (Hon) said: “Although it says on gov.uk that it is dated 1 September 2007, it is in fact current as to the law in 2023 (including, importantly, the proper ordering of the capacity test: starting with the functional limb).

“It is relevant where there is a concern in relation to the capacity to conduct proceedings in relation to an adult who is a party or intended party to proceedings in the Family Court, the High Court, a county court, the Court of Protection or the Court of Appeal.  Note, however, that it does not apply in relation to ‘P,’ i.e. the subject of proceedings before the Court of Protection: analysis of their capacity to conduct proceedings (and make relevant decisions) is to be carried out on the COP3 form (itself being revised at the moment).”

The Association of Lawyers for Children said that the revisions take into account the approach to assessment identified by the Supreme Court in A Local Authority (Respondent) v JB [2021] UKSC 52.