Thinking that one day you may lack the capacity to make important decisions in your personal affairs and well-being can be an unhappy thought. However, if and when a situation like this arises, you should be comforted by the thought that someone you trust is making the right decisions on your behalf and acting in your best interests.

This is why it’s important to set up a Lasting Power of Attorney (LPA) well before you could lose mental capacity. Making these decisions isn’t black and white, so this article will examine what frameworks, laws and structures are in place when making LPA decisions and what to consider during the decision-making process.

What Is Meant by ‘Best Interests’?

The definition of “to act in one’s best interests” or “to have one’s interests at heart” means someone will make decisions or take actions that prioritise your well-being and welfare, with your values, preferences and circumstances considered. Strict rules and processes are in place to ensure your best interests are always at the heart of the decisions being made if you lose capacity. You can read the complete list of legal requirements for the definition of “acting in a person’s best interests” on the UK Government’s website.

Who Decides if Someone Has Lost Capacity?

A mental capacity assessment is an evaluation used to determine whether a person has the mental capacity to create an LPA, as established in The Mental Capacity Act 2005 (MCA), the most important legal framework for calculating capacity. A doctor, solicitor or other professional may be involved in determining whether the individual can still make informed decisions.

Whether a person lacks capacity is the first step in gauging whether they need someone to make decisions for them. There is a difference between lacking capacity and having cognitive disabilities, which don’t affect an individual’s ability to use judgment and make decisions.

What Are the 5 Principles of the Mental Capacity Act?

The five key principles of the MCA spell out how to protect individuals who may be unable to make decisions. These principles guide decision-making and ensure people are supported as much as possible during this challenging time.

1. Presumption of Capacity

Every adult is assumed to be capable of making their own decisions unless proven otherwise. Capacity should not be questioned just because a person has a disability or illness or makes an unusual decision.

2. Right to Make Unwise Decisions

People have the right to make decisions that others may see as risky or unwise. Making a bad decision does not mean someone lacks capacity — it is their right to choose.

3. Support to Make Decisions

Individuals must be given all possible help to make their own decisions before being treated as lacking capacity. This includes providing information in different formats, allowing extra time or involving professionals like interpreters or advocates.

4. Best Interests

If a person lacks capacity, any decision made on their behalf must be in their best interests. These decisions should involve considering their wishes, feelings and values and consulting with family or professionals.

5. Least Restrictive Option

Any action taken must restrict the person’s rights and freedom as little as possible while ensuring their safety and well-being. The decision should allow as much independence as possible.

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What Does ‘Least Restrictive Option’ Mean?

When there are multiple ways to meet a person’s needs, the least restrictive option is preferred in decision making. Let’s consider a situation where an individual, under the authority of their appointed attorney, needs to decide on medical treatment. The individual has a chronic medical condition requiring ongoing management.

An invasive medical procedure could manage the condition more effectively but would be considered highly restrictive, as it involves higher risks and potential complications.
A conservative medical approach, such as a procedure with a less aggressive form of treatment, would be considered less restrictive as it minimises the intrusion into the individual’s autonomy and lifestyle, which is why it is usually preferred.

The best course of action for decisions related to health and medical care is to seek the advice of a healthcare professional. This is important for understanding the potential benefits and risks of different medical procedures. If you lack capacity and need treatment, this would be one of the steps taken when deciding your well-being.

Consider the Individual’s Past and Present Wishes

The UK Government’s website states you “must consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity)”. If the person who lacks capacity has ever made a previous similar decision or made direct communication about their preferences and wishes, this can aid in any decision-making on their behalf. Confiding in people close to you about your wishes in difficult situations can help if these situations ever arise.

Here are some real-world examples of best interests decisions people may face:

Healthcare and Medical Treatment

1. Consent to Surgery or Medical Procedures — A person with dementia needs urgent surgery, but they cannot understand the risks. Doctors and family members must decide if the procedure is in their best interests.

2. Life-Sustaining Treatment — If a person is in a coma and has no Advance Decision (Living Will), doctors must decide whether to continue life-sustaining treatment based on medical advice and the person’s previous wishes.

3. Choosing a Care Home or Support Services — An elderly person with severe Alzheimer’s can no longer live safely alone. Family and professionals decide whether a care home or at-home care is the best option.

Financial and Property Affairs

4. Managing Bank Accounts and Paying Bills — If a person with severe learning disabilities cannot handle money, their appointed attorney or deputy must ensure bills are paid and financial decisions are made responsibly.

5. Selling Property to Pay for Care — If someone owns a home but needs full-time residential care, a decision may be made to sell their property to fund their care.

Daily Living and Personal Welfare

6. Medical Treatment vs Religious Beliefs — A person who previously followed religious beliefs against blood transfusions becomes unconscious. Doctors must consider whether following those beliefs is still in their best interests.

7. Dietary Decisions — A person with a severe swallowing disorder may be unable to eat solid foods. A decision must be made on whether to use a feeding tube, balancing medical needs with their past preferences.

8. Who They Have Contact With — If a vulnerable adult is at risk of harm from a relative or carer, authorities may decide it is in their best interests to restrict contact.

End-of-Life Care

9. Do Not Attempt Resuscitation (DNAR) Orders — If a person lacks capacity and has a life-limiting illness, doctors and family may decide whether resuscitation would be in their best interests.

10. Palliative or Hospice Care Decisions — A person with a terminal illness may not be able to express their wishes. A decision may be made about whether they receive hospital treatment or palliative care at home.

Key Points About Lasting Power of Attorney

1. Should an LPA be in place before capacity is lost?

An LPA can only be created while the individual still has mental capacity. If they lose capacity without an LPA in place, family members may need to apply for a Deputyship through the Court of Protection, which is a more protracted and expensive process. If you or your family feel like you may be losing capacity, we believe it’s better to be proactive and start the process sooner. We can help guide you every step of the way.

2. What types of LPA are available?

Property and Financial Affairs LPA — Allows attorneys to manage money, pay bills, sell property, and handle financial matters. It can take effect immediately upon registration or only when the person loses capacity.

Health and Welfare LPA — Covers medical treatment, care arrangements, and living decisions. It only takes effect when the person loses capacity.

3. Attorneys must act in the person’s best interests

Power of Attorney solicitors have a legal duty to act in the individual’s best interests, considering their wishes, values and needs. They must follow the Mental Capacity Act’s principles and keep records of key decisions.

4. Restrictions and court oversight

Attorneys cannot make decisions beyond their authority, such as changing a Will, gifting large sums or refusing life-sustaining treatment (unless explicitly authorised in the LPA). If there are concerns about an attorney’s actions, the Office of the Public Guardian (OPG) can investigate and intervene if necessary.

5. An LPA must be registered to be used

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. If there are no objections, this process takes about 8–10 weeks.

6. If no LPA exists, a court-appointed deputy is needed

If someone loses capacity without an LPA, loved ones must apply to the Court of Protection for a Deputyship — a costly and time-consuming process compared to having an LPA in place. Having an LPA ensures a trusted person can step in immediately if needed, avoiding legal delays and uncertainty in decision-making.

Conclusion

Making a Lasting Power of Attorney and deciding who should make decisions for you, if you cannot, can seem intimidating, but it is best to have one in place. If you do not have one and you lose the capacity to make decisions, then either the local authority or a court will make the decision, or the court will appoint someone — and that process can take six to eight months or more. Having an LPA means you should never feel as though your wishes aren’t being granted regarding your body and life should you ever lose the capacity to make decisions.

We have been looking after the legal affairs of people in Sussex and beyond for over 125 years. We have expert knowledge of Lasting Powers of Attorney and are happy to guide you through the process.

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Lasting Power of Attorney and Making ‘Best Interest’ Decisions