How to make a best interests decision
The Mental Capacity Act 2005 has been in force since 2007. It is such an important piece of legislation and aims to empower people to make their own decisions whenever possible. At the same time, it seeks to safeguard those that lack capacity. As Private Client Practitioners, grappling with the act and guidance can be difficult and time-consuming.
The underpinning principle of the Act is that all acts and decisions should be made in the best interests of the person without capacity. If we act as a professional attorney or deputy then we will be familiar with the act and the assessment of mental capacity. We are also likely to have to make a best interests decision for our clients if they lack the capacity to make a particular decision themselves. This might be the sale of the client’s property, purchasing a new home for the client, commissioning care, or taking investment advice.
A lot of professional attorneys and deputies do not act for their clients in relation to health and welfare decisions. For those who do, making a best interests decision for their clients who have lost capacity will be a key part of their role. In fact, you may even have been called upon to make a best interests decision for a client in relation to receiving the Covid 19 vaccine. However, there is also a lot of crossover between financial and health and welfare matters.
Working out what is in someone else’s best interests may be difficult, and the Act requires you to follow specific steps to help you work out whether a particular act or decision is in a person’s best interests.
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The Mental Capacity Act 2005 and Best Interests Decision Making
We will all be very familiar with the Mental Capacity Act and the key provisions within it. I won’t repeat them here but it is worth noting some of the key principles. This will help at the start of any best interests decision you are called upon to make.
For any attorney or deputy, always consider whether the person can make that decision for themselves. This is because assessing mental capacity is time and decision specific.
There is a presumption of mental capacity unless it can be shown otherwise. A disorder of the mind or brain may indicate that a person lacks the mental capacity to make decisions. If they do, then it should be determined whether it is impacting the person’s ability to make a particular decision at the time it needs to be made.
It is possible for mental capacity to fluctuate. A person may be able to make some decisions but not others. It is important to involve the person in the decision-making process wherever possible. Somebody who has an illness that is affecting decision-making may still have a view on where they want to live or what they want to do with their money.
Best Interest decisions
Every decision and circumstance will be different and the Act cannot set out all the factors that need to be taken into account when working out someone’s best interests. However, section 4 of the Act sets out common factors that must be considered in all cases:
- Working out what is in someone’s best interests cannot be based simply on someone’s age, appearance, condition or behaviour.
- All relevant circumstances should be considered when working out someone’s best interests.
- Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decision.
- If there is a chance that the person will regain the capacity to make a particular decision, will it be possible to put off the decision until later if it is not urgent.
- The person’s past and present wishes and feelings, beliefs and values should be taken into account. Follow any wishes that the client has made known. Check the Power of Attorney, if there is one, and for any letter or Statement of Wishes.
- The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy.
Not all of the above factors will be relevant to all types of decisions. In many cases, other factors will have to be considered as well. You should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:
- how the decision about the person’s best interests was reached.
- what the reasons for reaching the decision were.
- who was consulted to help work out best interests, and
- what particular factors were taken into account.
Ensure that a copy of this record is kept on file.
By following the above steps, you will ensure that any decision you are called upon to make will be in the best interests of your client and you will be protected from liability.
Also, consider balancing the duty to consult other people with the right to the confidentiality of the person who lacks capacity. If confidential information is to be discussed, you should only seek the views of people who it is appropriate to consult, and whose views are relevant to the decision being made.
Depending on the nature of the decision, consider the use of specialised private services if that is a possibility when you cannot get help from a Local Authority.
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