Once of the principles of the Mental Capacity Act is that an attorney must only act in the best interests of the person they are looking after, but what does this actually mean?
As is always the case with legal things there is never a straight answer. In these circumstances the complication is that what is best for one person may not be in the best interest of another. It is also not helped by the Act not actually providing a definition!
When you are looking at what is in the best interests of someone you need to consider lots of things. So, start with the question that you need to answer. Is it in the best interests for the individual to pay their gas bill? Is it in the best interest of the individual to have an operation on their eye? Is it in the best interest of the individual to .......
If you are the individual tasked with making a best interest decision for someone who lacks capacity you must take into account all the relevant factors that it would be reasonable to consider not just those you think are important. What is relevant will vary from situation to situation.
You cannot work out what is in that person's best interest based on their age, appearance, condition or behaviour. You must make every effort to encourage the person who cannot make the decision to join in and express their thoughts and wishes. You need to consider whether the decision can be delayed if the individual may regain capacity. You must take into account the past and present wishes and feelings, beliefs and values of the individual who lack capacity and you must make sure that the views of others close to the individual lacking capacity are considered.
You should not take shortcuts in working out what is in someone's best interests and a proper and objective assessment must be carried out for every decision you need to make. The best way to make a best interest decision is to operate a balance sheet with the pro's and con's of the decision that needs to be made. Go through the things that you think are positive and negative about the situation and conside
r each in turn. Use this balance sheet as a starter to discuss with friends and family and to help determine what is a relevant factor.
Finally, keep a note of the decision you make. It is not a problem for you to keep a file of all the best interests decisions you have to make. You may need to justify a decision you make in the future if it is questioned. The note you made at the time you made the best interest decision could be vital!
If you are worried about making a best interests decision on behalf of another please give us a call to set your mind at rest on what to do.