What are the factors that must be considered?
If you have been asked to be an attorney for someone under their Power of Attorney, whether for finances or health and welfare, then they have placed their trust in you to act in their best interests at all times. This will also be the case if they did not have a power of attorney and the Court of Protection has appointed you as a deputy.
In practice, this can be easier said than done with difficult decisions such as whether the person should be cared for at home or in a nursing home setting, whether they should receive specific medication, or whether their house should be sold.
Fortunately the Mental Capacity Act provides guidance and sets out various factors that you must consider when deciding what is in another person’s best interest. It is important to follow what the Act says, and a solicitor can help you to understand your obligations under the law.
Mental Capacity Act factors
The key things to consider when making a best interests decision are:
- whether the person is likely to regain capacity to make the decision at some point in the future;
- the person’s general beliefs and values;
- the person’s past and present wishes and feelings;
- whether the person has made any written statement about their wishes;
- as far as is possible, you must also permit and encourage the person to participate in their own decision making; and
- you must also take into account the views of anyone who is involved in the person’s care.
If the person is likely to regain capacity, then you should factor this into any decisions you make, ensuring that they are as temporary as is suitable for the circumstances. Depending on the decision to be made, and the surrounding circumstances, it may also be appropriate to delay the decision if the decision cannot be temporary, or would be significantly life-changing, and it is not urgent.
If they have some capacity to participate, you should make sure that they are given the opportunity to do so as far as possible. For example, somebody may have capacity to decide what they want to eat for their dinner but not what medication they should take.
How to gauge a person’s wishes and feelings
Ideally, if you are appointed as someone’s attorney, you should discuss with them in advance what they would like to happen in various situations. However, this is not always possible (for example, if you are appointed as a deputy, the person will have already lost capacity and you may no longer be able to have certain conversations). Circumstances can change over time, and questions may arise which you have not considered.
Whilst any previously discussed wishes and feelings (or any that the person has recorded in writing) would be the most important factor, some useful guidance from previous cases in this area of law is that the following should be considered:
- what was the person like before they lost capacity?
- what was their job or their hobbies?
- what was important to them?
- what were their likes or dislikes?
- did they have any specific religious, spiritual, or ethical beliefs?
Involving others in a best interests decision
If you have co-attorneys, you should ideally all come to a best interests decision unanimously, the requirement to do this will rest on whether the attorneys are appointed ‘jointly’ or ‘jointly and severally’ to act. Even if you are acting alone, it is useful to consider the thoughts of the person’s family and friends.
Where the decision to be made is one of a medical nature, you should also bear in mind the views of medical staff involved in the person’s care. Key questions to ask the medical professionals are what the risks and benefits of each possible option are, the likelihood of those risks or benefits occurring, and the seriousness of each risk and benefit. Again your knowledge of the person’s wishes will be important.
If you are concerned that the correct decision may not be made, you should request a best interests meeting with medical staff. This can greatly assist with the decision making process and help to reduce the pressure you may feel around having to make such a decision on someone else’s behalf.
What if there is a disagreement?
Best interest decisions should be taken carefully and with consideration of all the relevant circumstances. One person’s best interest may not mirror another’s, even if they are a couple or they are closely related or otherwise heavily involved in one another’s lives.
If there is more than one attorney and you cannot agree on something; whether one can make a decision without the other(s) will depend on the way the Power of Attorney was set up. If attorneys are appointed jointly and severally, one may make decisions and authorise actions without the others necessarily agreeing. Practically, this is likely to cause upset, and you should always seek to agree in the first instance or opt for some third-party input or mediation if agreement cannot be reached.
If you are appointed under a Health and Welfare Lasting Power of Attorney, the final decision lies with the attorney(s). This does not, however, prevent any person from contesting your decision if they believe it is not in the best interests of the person you are acting for.
How can we help?
If you are struggling with making a best interest decision or you wish to understand the law in this area a little more clearly, our solicitors can help. If you have concerns about the actions of another attorney, or any decision they have made, our dispute resolution team can assist.
For further information, please contact Sally Power in the Wills, trusts and probate team on 01832 273506 or email [email protected].
Sally Power TEP, Partner
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