Caring for a loved one who lacks mental capacity can indeed be a challenging experience, both emotionally and practically. When it comes to making important decisions—whether related to healthcare, living arrangements, or finances—the Court of Protection is responsible for making decisions in the best interests of individuals who can't make these decisions themselves due to a lack of mental capacity.
The Court of Protection operates under the Mental Capacity Act 2005 and is tasked with ensuring that decisions made on behalf of individuals without capacity are in their best interests. This includes appointing deputies who can make decisions on an ongoing basis or making one-off decisions in more complex cases.
Navigating the Court of Protection can be daunting, especially given the legal and procedural requirements. However, understanding the court’s role and the legal framework can help reduce stress. The court considers various factors, such as the individual's past and present wishes, beliefs, and values, to make sure decisions respect their autonomy as much as possible. Family members and caregivers often play an important part in this process by providing input on what they believe the person would have wanted.
This guide aims to simplify the complexities of the Court of Protection's processes, helping families and caregivers understand their role and the legal framework. By being informed, you can better advocate for your loved one’s needs and ensure that the decisions made genuinely reflect their best interests.
Table of Contents
- What are best interests decisions?
- What is the best interests checklist?
- Examples of Best Interests Decisions
- How does the Court of Protection decide what is in someone's best interests?
- The role of the decision-maker in best interests decisions
- Can next of kin make best interest decisions?
- When to apply for a best interests decision
- How to make a best interest decision application
- How can I make sure my loved one's best interests are represented?
- What is the role of independent advocates in best interests decisions?
- Conclusion
What are best interests decisions?
Best interest decisions are made for individuals who can't make certain decisions for themselves due to a lack of mental capacity.
These decisions are guided by the principles outlined in the Mental Capacity Act 2005 (MCA), which provides a legal framework for protecting and empowering individuals who may not be able to make their own decisions because of conditions such as learning disabilities, mental health issues, dementia, brain injuries, or other conditions affecting cognitive abilities.
The Mental Capacity Act 2005
The key principles of the Mental Capacity Act 2005 are:
Every adult can make their own decisions unless established otherwise;
Individuals must be supported to make their own decisions as much as possible;
If a person is found to lack capacity, any decision made on their behalf must be in their best interests, considering their past and present wishes, feelings, beliefs, and values;
Any action taken or decision made on behalf of a person who lacks capacity should interfere as little as possible with their rights and freedom.
What is the best interests checklist?
When making a best interests decision, the decision-maker must follow a structured approach. The Mental Capacity Act 2005 outlines a "best interests checklist" to guide this process.
This checklist ensures that all relevant factors are considered and that the individual’s rights and dignity are respected.
The goal is to make a decision that aligns as closely as possible with what the individual would have chosen for themselves.
Here's what should be taken into account:
The individual's past and present wishes and feelings
Their beliefs and values
Other factors that would influence their decision, like the importance of maintaining relationships or the impact on their lifestyle
The views of family, friends, and healthcare professionals.
Key considerations for best interests decisions
Before you make a best interest decision for someone, there are some key considerations you have to keep in mind.
Well-being and safety
The decision should prioritise the individual's physical, emotional, and psychological well-being.
This means choosing options that enhance their quality of life and ensure they are safe from harm.
Physical and emotional needs
Basic physical needs, like adequate food, shelter, and access to care are fundamental to survival and quality of life. As such, they should be prioritised. However, emotional needs are just as important. Therefore, the decision should consider how to support the individual's mental health, emotional stability, and social connections. For example, making sure they have access to supportive relationships and activities that bring them comfort and joy.
Weighing risks and benefits
Any decision made should carefully weigh the potential risks and benefits, considering the individual's unique circumstances. The aim is to choose the option that offers the greatest overall benefit while minimising potential harm.
This might involve considering short-term and long-term effects, the likelihood of various outcomes, and how these will impact the individual's life.
Examples of Best Interests Decisions
Best interest decisions are made to ensure the individual's well-being, quality of life, and safety while respecting their autonomy and dignity. Here are a few examples:
Deciding on medical treatment or care
Choosing a place to live or receive care
Managing finances or property
Making decisions about social activities or relationships.
How does the Court of Protection decide what is in someone's best interests?
The court follows a structured approach when making best interest decisions. This means that any decision must align with the principles outlined in the Mental Capacity Act 2005 and follow the best interests checklist.
Even though the individual may lack capacity, the court will try and involve the individual as much as possible and ensure that their voice is heard. This might involve considering past statements or talking to those who know the person well.
Ultimately, the court looks at all possible options to make sure that the decision made is the least restrictive and most beneficial to the individual's rights and freedoms.
This decision is legally binding and aims to protect the individual's welfare while respecting their dignity and autonomy.
The role of the decision-maker in best interests decisions
The decision-maker plays an important role in the best interests decision-making process. They are responsible for identifying the need for a decision, gathering relevant information about the individual's circumstances, wishes, and feelings, and consulting with others, including family members, friends, healthcare professionals, and other relevant parties.
The decision-maker must look at the potential risks and benefits of each option and make the decision that best aligns with the individual's best interests.
This involves considering the individual's wishes and feelings, as well as their values and beliefs. The decision-maker must also act in the individual's best interests, respecting their autonomy and dignity and avoiding conflicts of interest.
In addition to making the initial decision, the decision-maker is also responsible for regularly reviewing and updating it to ensure it remains in the individual's best interests. This may involve reassessing the individual's circumstances, wishes, and feelings and considering new information or options.
Involving the individual
Involving the individual in the decision-making process and considering their wishes and feelings is a fundamental aspect of best interests decision-making. This involves identifying the individual's wishes and feelings through conversations, observations, and reviewing past decisions and actions. By doing so, decision-makers can better understand the individual's values, beliefs, and preferences, which can inform the decision-making process.
It is also important to involve the individual in the decision-making process as much as possible, taking into account their level of capacity and understanding. This may involve explaining the decision to be made, providing information about the options available, and seeking their views and opinions. Even if the individual can't make the decision themselves, their involvement can still be valuable in ensuring that their wishes and feelings are considered.
Decision-makers should also consider the individual's values, beliefs, and preferences when making decisions. This may involve using available information about the individual's wishes and feelings, such as advance statements or letters. Additionally, seeking the views of people who know the individual well, such as family members, friends, or carers, can provide valuable insights into the individual's wishes and feelings.
Factors considered in best interests decisions
The individual's physical, emotional, and psychological well-being, including mental health and quality of life.
Their safety and security, including protection from harm or exploitation.
Their autonomy and dignity, including respect for their wishes and values.
Their relationships and social connections, including family and friends.
Their cultural, religious, or personal beliefs and values.
The potential risks and benefits of each option, including any medical or financial implications.
The views of family, friends, and healthcare professionals, including their expertise and knowledge of the individual's needs.
Can next of kin make best interest decisions?
A person's next of kin doesn't automatically have the right to make best interest decisions for them unless they have been granted lasting power of attorney for health and welfare or property and financial affairs.
If an individual lacks capacity and has not appointed a lasting power of attorney or enduring power of attorney (before October 2007), the next of kin can apply to the Court of Protection to be appointed as a Deputy. Once appointed, they then have the legal authority to make decisions in the best interests of the individual concerning their care, treatment, and financial matters.
The Court of Protection can also make one-off decisions on behalf of an individual if there is no Deputy appointed and a specific decision needs to be made.
When to apply for a best interests decision
It may become necessary to apply for a best interests decision if:
An individual can't make decisions due to a mental impairment caused by illness, injury, or a disability that affects their cognitive abilities;
There is a disagreement among family members, carers, or healthcare professionals about what is in the individual's best interests;
Significant and potentially life-altering decisions need to be made regarding medical treatment, property, finances, social activities, relationships, or accommodation.
How to make a best interest decision application
To make a best interests decision application to the Court of Protection you should:
Contact the Court of Protection to get the required application form and accompanying guidance notes;
Fill out the application form including the individual's circumstances and needs, the decision to be made, and your relationship with the individual;
Apply online or by post with supporting documentation including proof of lack of capacity.
Further evidence or documentation you may have to provide include:
Statements from people involved in the individual's life, including family members, carers, and health professionals.
Details of assets and finances if the application involves decisions about financial matters.
How can I make sure my loved one's best interests are represented?
If your loved one still has mental capacity, they can appoint you as their Lasting Power of Attorney. This legal document allows you to make decisions on their behalf if they lose capacity in the future. There are two types of LPA:
Health and Welfare LPA
Property and Financial Affairs LPA
It's important to have open conversations with your loved ones about their wishes, values, and beliefs to make sure you can represent their interests accurately if the time comes.
If your loved one has already lost capacity and did not set up an LPA, you can apply to the Court of Protection to become their Deputy. This gives you the authority to make decisions about their care, treatment, and finances. The application process involves providing detailed information about your loved one’s circumstances and demonstrating your suitability to act on their behalf.
When making decisions, always prioritise your loved one’s known wishes, values, and beliefs. This respect for their autonomy is central to acting in their best interests. You should also involve other family members close friends, and relevant professionals in the decision-making process. This collective approach ensures that the decision is well-considered and reflects a broad perspective on what is in your loved one’s best interests.
By following these steps, you can ensure that your loved one’s best interests are represented in a way that is respectful, informed, and legally sound.
What is the role of independent advocates in best interests decisions?
Under the Mental Capacity Act 2005 (MCA), independent advocates play a crucial role in ensuring that the best interests of individuals who can't make decisions for themselves are fully represented.
Support and guidance
Independent advocates work closely with individuals to make sure their voices are heard. They help gather and communicate the individual's wishes, feelings, values, and beliefs, ensuring these are considered in any best interests decisions. This is especially important when the individual has difficulty communicating or understanding the decision-making process.
Advocates support the individual by working with their family, carers, and healthcare professionals to explore all options and identify what is truly in the individual’s best interests. They ensure that decisions are made in a way that respects the person’s dignity and autonomy.
Challenging decisions
If an independent advocate believes that a proposed decision is not in the individual's best interests, they have the authority to challenge it. This might involve raising concerns with the decision-maker, requesting further consideration, or even seeking a judicial review if necessary. This challenge helps safeguard the individual from decisions that might not fully consider their needs or preferences.
In some cases, advocates can initiate or support a judicial review process to challenge decisions that they believe are not in the individual’s best interests.
Safeguarding against abuse and exploitation
By being impartial and not personally connected to the individual or the decision-makers, they ensure that decisions are free from personal biases, conflicts of interest, or ulterior motives.
Advocates monitor the decision-making process, ensuring that all actions taken on behalf of the individual are transparent, accountable, and focused on the individual’s best interests. They act as a watchdog to prevent any misuse of power or neglect of the individual’s needs.
Statutory advocacy
Under the MCA, certain situations require the appointment of an Independent Mental Capacity Advocate (IMCA). This includes when decisions about serious medical treatment or changes in accommodation need to be made, and the individual has no family or friends to represent them. The IMCA’s role is to ensure that these decisions are made with the individual’s best interests at heart.
Conclusion
Best interest decisions are a fundamental part of the Mental Capacity Act 2005, ensuring that individuals who lack the capacity to make decisions for themselves receive the care and support they need, while their rights and preferences are respected.
The involvement of the individual, their family, and healthcare professionals is crucial in making these decisions, ensuring that the process is thorough, compassionate, and legally sound.
If you are facing a situation where a best interests decision needs to be made, seeking professional legal advice is vital. This ensures that the process adheres to the legal framework and that the individual's rights are protected throughout.
At Lawhive, our experienced network of wills, trust, and probate solicitors specialise in Court of Protection matters, including best interests decisions. We are committed to providing guidance and representation to ensure that your loved one's needs are met and their rights are upheld.
Contact us today to discuss your situation and receive expert advice on how to proceed.