When a party fails to disclose assets in divorce proceedings, the courts are entitled to draw appropriate inferences from the non-disclosure. This was demonstrated in a recent case in which the Family Court described the husband's conduct of the...
While the Mental Capacity Act 2005 does not define the term ‘best interests’, Section 4 of the Act does provide a checklist of factors to be taken into account when making a best interests decision.
It is important for deputies and attorneys to have an understanding on the concept of ‘best interests’ as the law clearly states any decision must be made in the client’s best interests.
The Courts will also expect best interests to be considered in situations where a health and welfare decision needs to be made and the client has not previously prepared a Health and Welfare Lasting Power of Attorney. It is extremely rare for the Court of Protection to appoint a health and welfare deputy. Rather, the Court will expect the issue in question to be discussed at a best interests meeting and only if an agreement cannot be reached will the Court consider making an Order. For more information on this issue please see our information sheet ‘Best Interests Meetings’.
When considering the issue of best interests, it is important for deputies and attorneys to ensure that they do not make a judgement based simply on the client’s age, appearance, gender, sexuality, race, ethnic background or religion. They must also consider the issue which needs to be decided at the specific time that it needs to be made. This is because the decision making process is both decision and time specific.
The Mental Capacity Act 2005 states that deputies and attorneys must consider the following:
- The past and present wishes and feelings of the client and in particular any written statements which may have been made when he/she had capacity
- The client’s values and beliefs that would have been likely to influence his/her decision if he/she still had capacity
- Any other factors that the client would have considered if he/she were able to do so.
Deputies and attorneys must also take into consideration whether the client is likely to have capacity in relation to the matter in question at some point in the future and if so, when that is likely to be. When determining whether life sustaining treatment should be given, those making the decision should not be motivated by a desire to bring about the client’s death.
Client’s must also, as a far as is reasonably practicable, be permitted and encouraged to participate, as fully as is possible, in the decision making process. It is also extremely important for the views of those who have a close relationship with the client i.e. friends and family members as well as carers, social workers, GP’s and treating consultants to be taken into account.
The Mental Capacity Act 2005 can be accessed by clicking the here.
The Mental Capacity Act Code of Conduct which can be accessed here and also provides helpful advice in relation on the issue of best interests.