If you are acting as someone’s Attorney or Deputy, you must follow the principles of the Mental Capacity Act 2005.
The Code of Practice to this Act sets out guidance to the 5 statutory principles which should be followed:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
If you are trying to work out what is in a person’s best interests where they lack capacity to make a particular decision, you should:
Do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision in question.
Identify all relevant circumstances
Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves.
Find out the person’s views
Try to find out the views of the person who lacks capacity, including:
- the person’s past and present wishes and feelings – these may have been expressed orally, in writing or through behaviour or habits
- any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question
- any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves
Do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour.
Assess whether the person might regain capacity
Consider whether the person is likely to regain capacity (e.g. after receiving medical treatment). If so, can the decision wait until then?
If the decision concerns life-sustaining treatment
Do not be motivated in any way by a desire to bring about the person’s death. You should not make assumptions about the person’s quality of life.