Decision making on behalf of others
- Shirley Barber
- Oct 2, 2022
- 6 min read
Updated: Sep 10, 2023
This article explores the decision-making scope of parents and carers of people over the age of 18 with additional/or special needs or learning disabilities. Decision making is part of day-to-day life i.e., what to eat, wear, where to live or agreeing to medical treatment. Between the ages of 16-18 when young people transition from children to adult services, professionals may need to do a mental capacity or best interests' assessment to determine the young person’s ability to make their own decisions, as they are now adults in their own right.
This usually leads to a discussion about needing legal authority and fears about what could happen when parents are challenged further down the line. They are usually surprised to learn that even though they provide 24-hour support and care ‘for their children’, in the eyes of the law, making decisions on their behalf is not an automatic right. Under the age of 16, such decisions are within the ‘scope of parental responsibility’.
The ability to make decisions considers whether the person has a general understanding of what decision they need to make and why they need to make it and the consequences of making or not making that decision. The ability to understand, retain, use, and weigh up the information relevant to a decision is also important. Can they communicate their decision by speaking, sign language or any other means? i.e., with the help of a speech therapist or a communication device?
Do parents/carers need a legal document to make decisions on behalf of their adult children?
The Mental Capacity Act (MCA) 2005, applies to people aged 16 and over. It is the statutory framework for those unable to make their own decisions because of an illness, learning disability, dementia, brain injury or severe mental ill health. It aims to protect people who lack capacity to make decisions and enables and supports them to participate in decisions made about them. It is not about restricting and controlling their lives. It also provides protection for those who make decisions in another person’s ‘best interests'. This includes family carers and paid professionals i.e., hospitals. If the person does not have someone to represent them i.e a family member, an Independent Mental Capacity Advocate (IMCA) can be appointed. The Act also established the Court of Protection (CoP), which is the decision maker on financial affairs and personal welfare, for people who are unable to make decisions for themselves. When deemed necessary, it can appoint ‘deputies’ to make one off or ongoing decisions for people who lack capacity or the ability to make their own decisions.
The MCA has 5 principles; however, in the context of this article I will only refer to 3 i.e., the presumption of capacity, best interests, and unwise decisions.
A person is presumed to have capacity unless it is established by an assessment that they lack capacity. The assessment has 2 stages. The first assesses whether there is an impairment of, or disturbance in the functioning of a person’s mind or brain (such as a learning disability, mental health ill health or Dementia). If so, is this sufficient to conclude a lack of capacity to make that decision? If stage 1 is met, then the person assessing capacity must show that the impairment or disturbance of the brain or mind prevents them from making a decision at that particular time. This is known as the functional test which focusses on how the decision is made, NOT the outcome of the decision. Determining capacity applies to a decision at the given time, not all decisions. Therefore, no one, not even parent/carers can just declare that the person they care for, lacks capacity to make decisions as there are some decisions they may be able to make. Also, the onus to prove capacity rests with the person/professional who needs to determine capacity not the person being assessed.
Secondly, an act done, or decision made, under the Act on behalf of a person who lacks capacity must be done or made, in their ‘best interests.’ When someone is unable to make a decision, then someone else will act in their best interests e.g., a family member, paid care worker, a solicitor, or a doctor. The person must be involved, as well as those with an interest in their welfare i.e., family carers. Their known wishes, feelings, values, and beliefs should be taken into consideration. It must be recorded in writing. ‘Best interests’ is a vague concept which can be interpreted in many ways. It does not necessarily mean what’s ‘best for’ the person. It is usually interpreted as ‘what the person would have done’ if they had capacity. Unfortunately, ‘best interests’ is not defined in the Act; however, it does provide guidance on matters for consideration when a decision maker is making a determination. This includes the persons’ past and present wishes and feelings, including written statements, their beliefs, values, and any other factors that the person would consider if they were able to. Unfortunately, for most parent/carers in this context, it will be just down to likes and dislikes as the person they care for may be unable to express most of above.
As regards unwise decisions, a person is not to be treated as unable to make a decision just because they make an unwise decision. Some adults with mild to moderate learning disabilities or on the autistic spectrum have the tendency to spend unwisely i.e., lots of shopping, video games, online porn, and do not fully realise why they should not as it is their money after all. Making an unwise decision does not necessarily imply lack of capacity. However, when repeated unwise decisions lead to significant risk, harm or exploitation, an assessment may be required. Knowing the difference between risk taking that is ‘unhealthy or dangerous ’ from that which is a result of ‘lack of capacity’ is important. An unwise decision includes not fully understanding the risks involved or the inability to weigh up the information which is relevant to capacity. Simply put, there is a difference between an ‘unwise decision’ (which most of us make from time to time) and a decision that is ‘based on a lack of understanding of the risks' or the ability to weigh up the information’ about the decision.
Becoming someone’s deputy
It is possible to become someone’s deputy if they ‘lack capacity’ to make decisions for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times (choice of food, going to the cinema - but not major decisions such as where to live or for medical procedures). Please note, that a deputy is not the same as a power of attorney, which applies to people who have the capacity to give consent to others to act on their behalf, in the event that they can no longer make decisions for themselves. Most young people mentioned above do not fall into this category, even though sometimes professionals do erroneously ask their parents, if they have one.
There are 2 types of deputies - for property and financial affairs which provides authority for dealing with another person’s assets and finances and personal welfare which provides authority for decisions relating to care or medical treatment.
Do you really need to apply for a deputyship?
Even though families feel pressured or believe that they need some form of authority to legally make decisions on behalf of the person they care for, this depends on personal circumstances. Applying for deputyship is not compulsory but may be necessary when parties involved cannot agree in very difficult circumstances i.e., within the family, family versus health professionals and/or social care. Otherwise, courts are reluctant to interfere with an individuals' freedom and fundamental rights to make choices.
When the decision concerns a person’s welfare, applying the 5 principles of the MCA is usually enough to decide about their care or treatment, as long as it is in their best interests. Parties should find ways to resolve disagreements . Therefore, before a personal welfare application is made, consideration should be given to whether the decision can be made without applying to the CoP. The CoP can decide that the application is not necessary, and the fees will still apply.
In conclusion, capacity should always be presumed unless proven otherwise. The ability to make decisions relates to the decision at hand not all decisions. Making decisions for others is not an automatic right. Decisions should be made in another person’s best interests, which is one of the underlying principles of the Mental Capacity Act, otherwise there will be no point to the principle, if all parent/carers applied to become deputies as soon as their children turned 18.
The CoP will usually appoint a personal welfare deputy if there are concerns about a best interests decision NOT being made or someone needs to be appointed to make decisions about a specific issue over time e.g., ongoing medical issue. Therefore, if you are a parent or carer of another person and you are asked by a professional whether you have a legal document to make a decision on their behalf, the starting point should be what is stopping all the parties involved making best interest decisions. There is always the possibility of applying to the CoP for a one-off decision should that situation present itself as mentioned above. There is nothing in law (at the moment) which requires parent/carers to apply for a legal document just because their children are adults in the eyes of the law.
For further in-depth information please refer to the following links: -
Shirley Barber is an freelance consultant and director of Appletree Advocates CIC, a community interest company registered in England and Wales. For further information go to www.appletreeconsultancy.org
September 2022