Haunted By The Past

Today is Halloween and the final post in the Court of Protection’s series of articles! We have been sharing insights into the complexities and challenges of our work, highlighting how legal expertise, empathy, and collaboration come together in this vital area of law.

Sometimes the ghosts that haunt us aren’t supernatural, but the echoes of our own past decisions.

Past Wishes Can Linger Like Shadows, Influencing Decisions Long After They Are Made

It’s no secret that our beliefs and wishes can change throughout our lives.  Some preferences that a person may have had when they had capacity, could be very different to what a deputy considers is in their best interests. Occasionally, historic wishes and feelings can come into conflict with someone’s best interests. This could be due to unforeseen events or a change in circumstances, for example, someone’s wish may be to stay at home and not go into a care home or care setting, however circumstances may mean that there is limited options available and therefore the deputy has to make a best interest decision to ensure that person is safe and financially sound.

Best Interest Decisions

In the event of losing capacity, you may be appointed a deputy if you have not appointed an attorney. An attorney or deputy will have to act in your best interests at all times under the Mental Capacity Act 2005.

A best interest decision, is when a third party (e.g. a deputy or doctor) has to consider all relevant factors in relation to the person who has lost capacity and make a decision on their behalf that they are unable to make for themselves.

They must consider all 5 principles listed in the Mental Capacity Act 2005:

• Presumption of capacity – You must always assume that someone has capacity unless a capacity assessment is completed and determines otherwise.
• Support to make decisions- Some people communicate in different ways. Some lose capacity only temporarily. It is also important to support someone in deciding if they can make the decision themselves.
• Unwise decisions do not indicate a lack of capacity- This means that if someone makes a decision you may disagree with or believe there is a better option, this does not mean they do not have capacity.
• Decisions must be made in a person’s ‘best interest’- Every decision made for someone else must be made in their best interest. It is important to consider their beliefs, culture and look at past decisions they have made.
• The ‘least restrictive option’- This means that when making a decision in someone’s best interest, it must be done in the way that least restricts their freedom.

It can be really scary making best interest decisions for a loved one, especially when they may have come into conflict with what someone would have wanted before they lost capacity. However, Wilson Browne Solicitors are all the help you need. We have a team of experts ready to help you.

If you would like to discuss your authority as a deputy, or have any other queries, please contact our experts in the Court of Protection team. We can offer fixed fee appointments for queries, make applications on your behalf, or act long term as a deputy or attorney for your loved ones. We are here to help and can be all the help you need.