Where an individual is deemed not to have capacity to make a decision, the decision will be made in the individual's best interest. The identity of the final decision make will depend on the the type of decision being made and whether there is an attorney in place. The decision maker may not always be the family or next of kin.
There are two type of attorney:
Health and welfare; and
Property and finance
Many people have a property and finance power of attorney in place to facilitate management of their affairs in circumstances where there are capacity issues. Unfortunately far too many do not have an attorney for health and welfare decisions. This means that if an individual lacks capacity to make a decision relating to where they should live, their medical care, or who they should have contact with for example; the decision will be made by the health or social care professionals involved in their care.
This can be upsetting for the families, particularly in cases where there is a disagreement between what the family think is in the individual’s best interests and what the professionals think.
The Mental Capacity Act 2005 and Codes of Practice give guidance as to relevant factors to take into account when making best interest decisions, and this includes the views of “anyone engaged in caring for the person or interested in his welfare”. The decision maker must also consider the individual’s past wishes and feelings and any beliefs or values they have which may influence their decision if they had capacity to make it.
We support families at best interest meetings where there may be a dispute to support them in putting forward their views and ensuring that the guidance set out in legislation is properly taken into account when these important decisions are being made.
Have an enquiry? Please contact Paula Barnes or phone 0808 231 6491.