5 “best interests” you need to consider before making a decision on behalf of a loved one who lacks capacity
In general, it is the right of everyone to make decisions about what happens to them, restricted only by requirements and prohibitions of the law. However, in some cases people are judged to lack mental capacity to make informed decisions, and this means that someone else must make certain decisions on their behalf.
A variety of conditions can cause lack of mental capacity, whether permanently or temporarily. The most common are:
- dementia, such as Alzheimer’s
- serious mental health issues
- severe learning disabilities
- long-term loss of consciousness, such as a coma following illness or accident
- effects of a stroke or brain injury
If your partner, a member of your family, or a close friend should be in this position, you may be asked to take decisions on their behalf, either under a Lasting Power of Attorney (LPA) set up before they lost capacity, or as a Deputy appointed after the event by the Court of Protection.
In either case, you may need to make decisions on behalf of your loved one in areas such as their health, their finances, where they live (e.g. at home or in a care home) and other arrangements for their life. All these decisions must be taken in their best interests — but what exactly does this mean?
Section 4 of the Mental Capacity Act provides a checklist of five things that must be taken into account when considering whether a decision is in someone’s best interests.
1. Considering your loved one’s wishes and feelings
Just because someone is unable to make rational decisions does not mean that their wishes are irrelevant, especially if you are aware of your loved one’s past wishes prior to them losing capacity. They may have already done a Will or simply made specific statements about their wishes and preferences in conversation. This is one area where the personal connection makes you more effective than a more distant Attorney or Deputy.
It is also important to involve a person in the decision making as even though they may not have capacity, they still might be able to add their own thoughts, which can be important when making a decision.
2. Considering all the circumstances relevant to them
The type of mental incapacity a person is suffering is likely to make a significant difference in the best approach to taking decisions about their safety, health, living arrangements and financial security. Severe and permanent brain injury and conditions such as Alzheimers may mean that a person’s capacity will never improve so this has to be taken into account in the decision-making process.
Someone’s age is also important as this will have an impact on decisions especially in relation to finances and how much money the person may have.
On the other hand, someone who currently lacks capacity may have a good chance of regaining capacity. These could include someone who is temporarily unconscious, or suffering from a treatable mental health issue. Therefore, any decisions made might only be those for the short term.
Your decisions may also be affected by their current living arrangements. For instance, are they living on their own or with family? Who would be able to contribute to caring for them? Is their physical ability also impaired? These circumstances are all important considerations as to whether a decision is in a person’s best interests.
3. Considering their future capacity
As noted, for the reason for a lack of capacity can have a profound effect on the prognosis for regaining capacity. In some cases, the issue may be a fairly short-term one, offering a good possibility that your loved one will make a full recovery. In other cases, such as Alzheimer’s, the it is unlikely that they will ever regain capacity.
If there seems a good likelihood of their condition improving to the point where their mental capacity is restored, then such decisions should be put off if at all possible. Of course, if there is an important decision that has to be made quickly and is needed in the person’s best interests, then making such a decision is likely to be justified. On the other hand, if all indications are that the condition is permanent, decisions should be made in a person’s best interests.
4. Supporting their involvement
Besides taking into account past wishes and choices, your loved one’s current wishes should be respected in the majority of cases. This might involve ensuring they can make a reasonable choice of food, for example, by talking to them about what they would like for the day or the week. Even if it is not possible to meet all their wishes, you should be trying to get as close as possible.
On the other hand, it would also not be considered to be in their ‘best interests’ to agree to whatever they wish to do. For example, if the person you are responsible for wanted to buy a second property but only had a small amount of money left, this would not be in their best interests.
Even if it is not possible to find out or meet all their needs, they should be involved in decisions as much as possible.
5. Considering the needs of other people involved
A person who lacks capacity is likely to have many people involved in their care and day-to-day life. If you have been appointed as Attorney or Deputy, the ultimate decisions will be up to you, but other family members, close friends and carers will also have opinions and insights.
It is worthwhile bearing in mind that whilst you may believe that you know the person best, others may have specific and useful knowledge. This can be especially true of carers and therapists.
Depending on the decision being made, involving people from various areas of a person’s life has the potential to ensure that a decision is made in their best interest.
When making decisions on behalf of a loved one, you will always want to act in their best interests, but it is not always easy in practice to identify what those are. It is also important to ensure that any decision made is the least restrictive option available.
At Osborne Morris & Morgan, we can help you. Our nationally-recognised team of Court of Protection specialists can help and guide you throughout the process.
To speak with our specialist Court of Protection team please call 01525 378177, or you can contact us online.