Attorneys and deputies acting for a person lacking mental capacity (known as P or the donor) are under a legal duty under the Mental Capacity Act 2005 (MCA) to act in their best interests and take all practical steps to assist them in making decision for themselves.
What are ‘best interests’ under the MCA?
There is no definition of best interests in the MCA which instead has a list of factors which should be considered by attorneys and deputies.
Not all of the below factors will be relevant in every case. However, they should still be considered by the attorneys or deputies, if only to disregard them:
- The attorney or deputy must not discriminate or make assumptions based on age, appearance or behaviour of P.
- The attorney or deputy must consider all relevant circumstances surrounding the decision in question.
- The attorney or deputy must consider whether P is likely to regain mental capacity to make decisions for themselves.
- The attorney or deputy must encourage, as far as possible, participation from P in the decision making process.
- Regarding decisions on life sustaining treatment under a Health and Welfare Lasting Power of Attorney or Deputyship, the attorney or deputy must not be motivated by any desire to bring about P’s death.
- The attorney or deputy must consider P’s past and present wishes and feelings, beliefs, and values and other potential relevant factors.
- If practical and appropriate, the attorney or deputy should take into account the views of others.
Case law has emphasised the importance of P’s past and present wishes and feelings, and that they should not be disregarded because of P’s mental incapacity.
Major decisions such as incurring significant expenditure, e.g. property purchases or gifts, outside of customary amounts on customary occasions would need approval from the Court of Protection.
If an attorney or deputy acts in a way which is not considered by the Court of Protection as being in P’s best interests then they can be ordered by the Court to compensate P for any financial loss and may also face other sanctions including potential criminal proceedings. It is, therefore, important that when in doubt, attorneys or deputies seek approval from the Court of Protection before making any major decisions, such as a property purchase.
Are there any restrictions for deputies and attorneys?
There may be restrictions in the Lasting Power of Attorney (LPA) or Deputy Order which prevents the attorneys or deputies from doing certain things, e.g. selling properties or making gifts, so it is important for attorneys and deputies to familiarise themselves with the document that confers this power on them to check for such restrictions on their power.
Other restrictions on making gifts are contained in Section 12 of the MCA. The legislation states that only gifts on “customary occasions to persons who are related to or connected with the donor” and “to any charity to whom the donor made or might have been expected to make gifts”. The value of the gift must not be unreasonable having regard to all the circumstances and, in particular, the size of the donor’s estate. A customary occasion is said to mean “anniversary or a birth, a marriage, or formation of a Civil Partnership” or “any other occasion on which presents are customarily given within families or among friends or associates”.
How Nelsons can help
Heidi Korman is a Trainee Solicitor at Nelsons.
If you would like any advice in relation to the subjects discussed in this article, please contact Heidi or a member of our expert Wills, Trusts and Probate or Court of Protection teams in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.