Court of Protection: 5 Best Interests to Consider Before Making a Decision on Behalf of a Loved One

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 the 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 a lack of mental capacity, such as: 

• 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 make 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? 

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 made 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 the 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 making 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.  

3. Considering their future capacity 

As noted, 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, then 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.  

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.  

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. 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.  

Osborne Morris & Morgan  

At Osborne Morris & Morgan, we can help you apply for Deputyship. Our nationally-recognised team of Court of Protection specialists can help and guide you throughout the process.  

We will be exhibiting at Naidex. For more information visit www.ommlaw.co.uk or you can contact us via info@ommlaw.co.uk  or call 01525 378177. Or find us on twitter @ommlaw, Facebook or Linkedin.