Lasting Powers of Attorney - Making decisions in the best interests
If you find yourself in the position of being asked to be an attorney for someone under their power of attorney – whether it's for handling finances or decisions about health and welfare – congratulations, you've been entrusted with a significant responsibility. This trust also extends if you're appointed by the Court of Protection as a deputy in the absence of a power of attorney.
Navigating decisions such as whether a person should be cared for at home or in a nursing home, which medication they should receive, or whether their house should be sold can be quite challenging.
Thankfully, the Mental Capacity Act provides guidance and outlines various factors to consider when determining what's in someone else's best interest. Following the Act is crucial, and seeking professional advice can clarify your legal obligations.
When making a ‘best interests’ decision, there are key factors to keep in mind:
whether the person might regain capacity in the future
any written statements the person has made about their wishes
the person's past and present wishes and feelings
the person's beliefs and values
including the person in decision-making as much as possible
the views of anyone involved in the person's care.
If there is a chance the person might regain capacity, decisions should be temporary and suitable for the circumstances. If they have some capacity to participate, you must give them the opportunity to do so wherever possible.
Understanding a person's wishes and feelings ideally involves lots of prior discussions to really comprehend their motivations behind their decision making and what they would ultimately do faced with a variety of circumstances.
However, sometimes this isn’t possible. If you are faced with this situation, perhaps consider what their personality was like before losing capacity, their job or hobbies, what was important to them, likes or dislikes, and any religious or ethical beliefs.
Sometimes, there will be more than one attorney appointed and you will hopefully all be able to agree on a ‘best interests’ decision unanimously. If the LPA states you must decide jointly, this is the only was to proceed without taking the issue to court. If the LPA states jointly and severally, meaning you don’t have to agree, it is still advisable to talk the decision through if possible.
If you happen to be acting alone, consider the thoughts of the person's family and friends. When tasked with making medical decisions, it’s a good idea to speak to the medical staff involved and ask questions about possible risks and outcomes. Medical professionals will be able to meet with you to help you come to a ‘best interests’ decision.
If you have been appointed under a Health and Welfare Lasting Power of Attorney, the final decision lies with the attorney(s). However, this doesn't prevent others from contesting the decision if they believe it's not in the best interests of the person. In cases of persistent disagreement, an application can be made to the Court of Protection for intervention and a ruling.
Unfortunately, disagreements can happen, and taking best interest decisions requires careful consideration. Potentially not everyone involved will come to the same conclusion – we have all had different life experiences and therefore offer differing opinions. If disagreements arise and you can’t reach a decision jointly, you can seek help from a third party. We can help you with mediation to enable you to reach best interests decisions where a Financial and Property LPA is held.
If you would like to know more about how we can support attorneys or you would like to discuss making LPAs yourself, please don’t hesitate to get in touch.
Give us a call on 0117 3636 212 or email office@haroldstephens.co.uk to have a relaxed chat about your circumstances and find out how we can help you.