Insights

Lasting Power of Attorney and Making “Best Interest” Decisions

Thinking that one day you may lack capacity to make your own decisions can be an unhappy thought. However, if 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 interest. 

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 that someone will be making decisions or taking actions that prioritise your well-being and welfare, with your values, preferences, and circumstances taken into consideration. There are strict rules and processes in place to make sure that your best interests are always at the heart of the decisions being made. You can read the full list of legal requirements for the definition of “acting in a person’s best interests” on the UK Government’s website, available here. 

Making these decisions isn’t always black and white so this article will look into what frameworks, laws and structure are in place when making LPA decisions and what is considered during the decision-making process. 

Mental Capacity Act (MCA) 2005  

Whether a person is lacking capacity or not is the first step to gauge if they need someone to make decisions for them. The Mental Capacity Act is the most important legal framework used when calculating capacity. There is a difference between lacking capacity and having cognitive disabilities which don’t affect an individual’s ability to make their own judgement. An example of this is Banks v. Goodfellow (1870): although the person involved had mental health issues, they still had capacity, and this did not affect their ability to make important decisions (read the historical case study here). 

Individual’s Past and Present Wishes 

The UK Government’s website states that 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 him when he had capacity)”. If the person who lacks capacity has ever made a previous similar decision or made direct communication about their preferences and wishes then this can aid in any decision making on their behalf. Confiding in people close to you about what certain wishes you have in difficult situations can help if these situations ever arise. 

Medical Advice and Healthcare Professionals 

In terms of decisions related to health and medical care the best course of action 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 lacked capacity and needed treatment then this would be one of the steps taken when making a decision about your wellbeing. 

Religious and Cultural Considerations 

If you follow a certain religion or have specific cultural practices that restrict you from doing certain activities then these values will be considered when making decisions on your behalf. This can affect decisions related to your diet, religious practices, language of communication and end-of-life choices. 

Least Restrictive Option 

In decision making when there are multiple ways to meet the person’s needs, the least restrictive option is preferred. Let’s consider a situation where an individual, under the authority of their appointed attorney, needs to make a decision regarding medical treatment. The individual has a chronic medical condition that requires 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 which has 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. 

Conclusion 

Making a Lasting Power of Attorney and deciding who you should make decisions for you if you are not able, may seem like an intimidating task but it is best to have one in place. If you do not have one and you lose 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 6 or 8 months or more. Having an LPA means you can decide who makes decisions for you if you are not able to. Having an LPA means you should never feel as though your wishes aren’t being granted regarding your body and life.  

We have been looking after the legal affairs of people in Sussex and beyond for over 125 years. When it comes to Lasting Powers of Attorney we have expert knowledge and will be happy to guide you through the forms and process of setting it up. Reach out to us today by emailing us at enquire@bbc-law.co.uk or phone, 01273 604 123. 

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