Last week, I had the privilege of meeting with a Judge from Japan, who wanted to learn more about the laws in England and Wales for managing the financial affairs of people who lack capacity. It provided me with the opportunity to discuss the legal framework in Japan and contrast this with our own systems. One of the questions that the Judge asked me was about my views on how to determine a person’s best interests and so, I thought I would share these views in this article.
I think the first thing to concentrate on is that the approach needs to be person centred and very much individual to the person concerned. There is no formula for determining best interests and whilst there are common factors, the weight applied to these will vary depending upon the individual concerned. This is one of the reasons why it is so important that a deputy or attorney making decisions on behalf of someone else has a positive relationship with them.
In order to make best interests decisions on behalf of someone else you need to know the person and their individual circumstances extremely well. It is essential to build and foster good relationships in order to ensure that information is shared and the views of those involved are considered. The personal views of the person determining best interests should not be relevant to the process. The better you know the person, then the easier it should be to determine what is in their best interests.
The second important point is to avoid making assumptions. – This sounds obvious, but from a financial deputy perspective, I have seen many cases where a deputy has been asked to consider a decision and too quickly determined that it is not in the person’s best interests. One of the key aspects of the Mental Capacity Law in this country is empowerment and I believe that hasty decisions made on the basis of assumptions, jeopardise this principle. When you make decisions on behalf of someone else, it is your duty to properly consider the decision that you are being asked to make and weigh all of the relevant factors. In my work with professional deputies, I have been asked to consider some fairly bizarre requests from clients but I have always tried to avoid making assumptions or reaching a rash decision, concluding that something was not in their best interests. This in my mind is linked to the idea of unwise decisions and not assuming that someone lacks capacity because you don’t agree with them doing something that you consider to be unwise. The same could be said about best interests and not having pre-conceived ideas about a decision, which can be very debilitating to that person. Remember, as I said above it needs to be a person focused approach.
The final point I made was about balancing safeguarding against empowerment and from the discussions with the Judge, it appears as though this is also something that is relevant to the current systems in Japan. Safeguarding is clearly a very important part of making decisions on behalf of people who lack capacity. However, if the balance is too much towards safeguarding, then this can impede upon the rights of the individual. It is sometimes instinctive in human nature for us to try and protect the rights of those who we perceive to be vulnerable, but this should never be at the expense of infringing upon that person’s individual rights and freedoms. The approach should be to weigh the risks associated with a decision and then consider this alongside the relevant factors. It is important to remember that people who have capacity often make decisions with high risk associated to them because they weigh the benefits of that decision above the risks. We shouldn’t assume that someone without capacity might not reach the same conclusion.
I hope to keep in touch with the Judge and continue our discussions as our respective legal systems evolve. If you would like to discuss best interests or anything else involving mental capacity law and the Court of Protection then feel free to contact me at firstname.lastname@example.org