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Zahra Pabani
Zahra Pabani
Partner - Family Law
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'Best Interests'- how to decide?
Date:18 NOV 2019

I act as a Deputy for many clients, young and old, with different needs, requests and expectations. I manage their money and need to make best interest decisions daily.

When a client lacks capacity to make a particular decision then it’s my job to help support them in making that decision. If they can’t make a particular financial decision then I become the ‘decision maker’.

The law

The Mental Capacity Act 2005 (the Act) sets out five key principles and how they should be applied when acting for a person who lacks capacity.

The Act states: “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 his best interest”. This is one of the five key principles.

Interesting the term 'best interests' is not defined in the Act. However this principle is a crucial part of the Act and must be central to any decision made by me as a Deputy.

The Act, despite not defining best interests, does give a checklist of key factors to consider when working out what is in the client’s best interests.

The checklist

When I try to work out what is in a clients best interests of a client I will use this checklist and will:

  • Try to encourage their views where possible. This may mean also speaking to close family members such as a child’s parents or to carers.
  • Try to identify all of the things that my client would have taken into account if they were trying to make the decision themselves.
  • Make sure that I don’t judge anyone on their age, appearance, condition or behaviour.
  • Bear in mind that they might regain capacity and it may be that we could defer the decision or alternatively I may be aware that they are more alert at a certain time of the day and therefore I should talk to them then.
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Applying best interests

So what best interests comes down to is a matter of opinion. What one person believes is in a person’s best interests may be different to what another believes.

An example of a challenging best interest decision was in the case of Re A [2015] EWCOP 46.

This case involved a young girl who had been born prematurely and soon after her birth was rushed to hospital and suffered an anoxic brain injury. She received an award for compensation for her injuries of £5,000,000.

Her award was managed by a very experienced professional Deputy who got to know his client and her family vey well. His client had one older sister and a younger brother. The older sister went to the local grammar school but the younger brother had been severely affected by his sister’s situation and struggled at school. He did not secure a place at the grammar school.

The Deputy decided that he would use his client’s award to pay for her brother to attend a private school as her brother was suffering as a result of his sister’s situation.

On this occasion an application was made to the Court of Protection to approve this particular decision but the application was unfortunately lost within the system and delayed. Once it was before the Judge the Official Solicitor opposed the payment and contended that the Deputy had behaved in such a way that he had contravened his authority and it was not in the client’s best interests that those school fees should be paid on behalf of her brother. In fact, The Official Solicitor felt that the Deputy was personally liable to reimburse his client’s funds for the amount spent on her brother’s school fees.

The Senior Judge decided that it was in the client’s best interests to authorise the Deputy to pay her brother’s school fees from the compensation award as he felt that the payment was reasonably affordable bearing in mind the size of the award. In addition, in most cases of this nature there is mutual dependency within the family so that her brother would have been impacted by the medical issues that his sister faced which in turn impacted his ability to cope at school. A final and very practical point was that if the payments were discontinued then the parents would have had to return to the job market and employ an external care team to look after their daughter which would probably cost far more than the school fees. You can see here that in these cases one issue interlinks into another!

Clearly a sensible best decision interest was made by the Deputy but challenged by the Office of the Public Guardian and fortunately the Judge adopted a common sense approach. Furthermore the Judge commented: "With regret, I must say that I found the Official Solicitor’s approach to this application unnecessarily intrusive and hostile. It involved a microscopic scrutiny of the professional deputy’s expenditure"

A professional deputy will take time to get to know their client and families well. Decisions will be thought out carefully and they will take into account the ‘bigger picture.’

Best interests decisions made by myself as Deputy

  • I act for a gentleman in his sixties who has a property in London as well as a tumbledown property on the coast of Wales which was not being maintained. My client particularly wanted to retain the property in Wales despite the fact that he was unable to ever visit it or rent it out due to its condition. Unfortunately his financial situation was precarious and funds were needed. I had to consider selling the house despite my client’s emotional attachment and I decided that the best course of action, bearing in mind his financial situation was in fact to sell the house.
  • I act for an elderly lady who needed to move into a Care Home. The decision was therefore whether we should sell her property or rent it out in order to obtain funds to put towards Care Home fees. My client lived in an area where house prices were good and renting was a viable option. It was hoped that the price of the property would increase substantially over the years. I approached Fund Managers to adopt a cash flow forecasting to work out the best way that an income could be obtained as well as the rate of return and I also considered the difficulties in renting a property and maintaining it. A decision was made to sell the property so that we could fund an annuity to pay for the care fees for life. The property market has since slowed.
  • I act for a young man who lives with his parents in a property that had been impacted by heavy rain. I would usually obtain three quotes to make a decision as to which person should be responsible for carrying out the repairs but there was no time due to the fact that the ceiling was now soft and there was a danger to those living within the property. A best interest decision was made to accept the first quote.
  • I act for a young adult who lives with his parents and receives quite a lot of care from his parents but there are insufficient funds to pay for a gratuitous care payment to them. Rather than agree gratuitous care funding I advised them that there were insufficient funds and provided them with the cash flow forecasting to evidence this. I then made an application to the Court to make this decision as the family disagreed with my decision. The Court agreed with me and noted that we may be able to obtain statutory funding to pay for parental care.
  • I have acted for a young gentleman in his twenties who has fluctuating capacity but was a patient of the Court of Protection. He approached me for funds to put into a small vodka tasting business. I was able to take into account his wishes and feelings as well as the budget he had put together and a business plan but when looking through the figures I could see that he would eventually suffer financial loss and this was not going to be a successful project. However I decided it would be in his best interests to go ahead with the plan bearing in mind that it was a request for a modest sum of money. More importantly it provided him with a project and something to look forward to in planning his day and would help him learn pitfalls in running a business. I therefore agreed to fund the vodka tasting business in the sum of £5,000 from his compensation award. He managed to run the business for three months before losing all of the money. Since then he has been discharged from the Court of Protection as he regained capacity and now successfully runs businesses abroad. In this particular situation I was not concentrating solely on the financial aspects but also on the fact that he would be able to learn from running a business and the self esteem in being able to work for himself.

You can see from these examples that making best interest decisions can go from straight forward to complex. A Deputy needs to take into account several factors and weigh them up before coming to a conclusion which is always going to be a matter of personal opinion. It is helpful however, to always keep a clear note as to how the decision was reached and what factors were taken into account just in case the decision is challenged at a later date.

This article was first published by Boyes Turner, and is reproduced with permission.

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