Mental capacity is easily taken for granted. For those who have always been able to make decisions about their life, their money, their health and wellbeing, it’s not easy to imagine that being taken away.
But this happens. Whether through an accident or illness, someone can lose their mental capacity – instantly or gradually. And the repercussions affect not just the person at the centre of this, but also their loved ones who usually step in to take control of, or oversee, decisions that need to be made. These decisions include everything from what the person should eat from day to day, to whether they should sell their house and move into a care home, to what medical treatment they should receive.
Underpinning each of these decisions is one consideration: best interests. What would be in the best interests of the person who has lost mental capacity?
While best interests are sometimes easy to determine, there will be times when those responsible for making decisions will be unsure about what to do. In those situations, it can help to go back to the basics. And that starts with a piece of legislation called the Mental Capacity Act.
What best interests should not focus on
The Act says that decisions about best interests must not be made merely on the basis of a person’s age or appearance. Nor about the condition of, or an aspect of, their behaviour which ‘might lead others to make unjustified assumptions about what might be in his best interests’.
Steps to take when deciding best interests
All relevant circumstances must be taken into account, and the following (in particular) must be considered:
- whether it is likely that the person will at some time have capacity in relation to the matter in question, and
- if it appears likely that he will, when that is likely to be.
Steps must be taken, where reasonably practicable, to allow, encourage, or help the person to participate as fully as possible in any act done for him and any decision affecting him.
Things to take into account
- The person’s past and present wishes and feelings. In particular, if the person made a relevant written statement when he had capacity, that should be considered.
- The beliefs and values that would be likely to influence the person’s his decision if he had capacity.
- Other factors that the person would be likely to consider if he could.
The decision-maker should also take into account the views of anyone named as someone to be consulted on best interests in the particular circumstances. Also, anyone involved in caring for the person or who is interested in his welfare; a person appointed under a Lasting Power of Attorney (LPA); and a ‘deputy’ appointed by the Court of Protection.
But how is the ‘best interests’ duty discharged? How does a decision-maker know that they have done the right thing? In some circumstances there may never be a clear answer to that. The most he or she can do (and this is set out in law) is to reasonably believe that what they do or decide is in the best interests of the person.
That is a point that should resonate with anyone who is considering putting plans in place for whatever the future may hold. Lining up a decision-maker to take control of your financial and property affairs and your health and welfare is a key aspect of this. It means you have someone you trust – and who you know will exercise their powers wisely – to take care of you, in the event that you lose your mental capacity. This is done via an LPA, the alternative to which is relying on the Court of Protection to appoint a deputy to safeguard your best interests.
Clients who make an LPA tell us they feel reassured to have their chosen attorney in place; someone they can count on to weigh up the pros and cons and to take the ‘right’ action. It’s future planning that we should all consider putting in place.