When Can You Help Others Make Decisions?
UK law allows appointed people to help others make decisions. It applies whether that person lacks mental capacity or not.
So, someone can choose another person (or persons) to make decisions, and act on the outcome of certain decisions, on their behalf. You can get appointed to:
- Make decisions now (e.g. while they are away on holiday).
- Help make future decisions (e.g. if they lose the mental capacity).
Note: If the person is lacking mental capacity, you can make an application to court to help someone else make decisions.
Outside of the UK court systems, there are extra restrictions on when a person can appoint someone else. The appointee must have mental capacity when they choose another for short-term or long-term help with decision making.
Short-term Appointments for Help
Being asked to help make decisions about someone else’s money or property is not uncommon. But, a short-term appointment would only last for a limited time (e.g. while they are away on business). The person can choose to appoint someone else with (either):
- An ‘ordinary power of attorney’ (only usable while the person has mental capacity).
- A lasting power of attorney (LPA) for ‘property and financial affairs’. As a rule, the appointee must state when it starts and when it ends.
Note: Unless the person uses a solicitor they would need to buy the document from a newsagent when making an ordinary power of attorney.
Long-term Appointments for Help
Being appointed with a lasting power of attorney means you can help someone make long-term ongoing decisions about (either one or both):
- Health and welfare (can start when they have lost their mental capacity).
- Property and financial affairs (can start at any time or when they are lacking mental capacity).
Note: Lasting power of attorney (LPA) replaced the EPA on the 1st of October 2007. Even so, you can continue helping someone with ongoing decisions using an enduring power of attorney (EPA) made before this date.
When You Must Apply to a Court
You can apply to a court to help someone with little or no mental capacity to make decisions. When you apply to court you can choose between making a one-off or long-term decisions.
Before you apply, you can find out if someone has an attorney or a deputy acting on their behalf. If so, you would be able to ask their attorney or their deputy for help, instead.
Making One-off Decisions
If you only need to make a one off decision you can apply to ask the Court of Protection to grant permission for:
- An urgent or emergency application about something that is putting the person’s health or welfare at risk.
- A one-off decision from the Court of Protection about a non urgent issue (stop someone visiting them in a nursing home).
Note: You must consider whether the person made a living will (advance decision) if your appointment relates to medical treatment.
Making Long-term Decisions
In some cases, court-appointed deputies also make decisions for people who lack mental capacity. You can apply to the Court of Protection to help a person on a long-term basis with decisions as (either one or both):
- A personal welfare deputy (e.g. for medical treatment and how someone gets looked after).
- A property and financial affairs deputy (e.g. to pay bills and organise their benefits or pension).
How to Make Decisions on Behalf of Someone
Anyone acting as an attorney or a deputy for someone else has authority and responsibilities that include:
- Giving the donor all the help they need to make each decision themselves. The decision-maker must do this ‘before’ deciding that they lack mental capacity to make the decision on their own.
- Making decisions that are in the best interests of the person lacking capacity.
- Making decisions that have the least effect on their human and civil rights.
Helping the Donor Make Decisions
You can help someone make a decision by giving them all the details and information they need to make it. There are several ways you can make it easier for them to understand and then weigh up the information, by:
- Allowing as much time as possible to decide.
- Choosing a decision time that suits them best.
- Discussing things in familiar surroundings (e.g. in their home).
- Giving explanations in different ways (e.g. using pictures or sign language).
- Removing things that create distractions (e.g. background noise).
Note: It can help to use different ways to get their decision if they have difficulty speaking. Examples include blinking, nodding, pointing, and squeezing your hand.
Making Decisions in the Donor’s Best Interests
As a rule, the definition of ‘in their best interests’ means you must make decisions that are right for the other person (not yourself). That means taking certain things into account, such as:
- What the other person would have decided if they were able to make their own decisions.
- The person’s past and present values and wishes. In most cases, this would include their moral, religious, and political views.
Note: As a rule, you should not make assumptions based on their age, ethnic background, behaviour, gender, health, or sexuality.
As part of your role of making decisions on behalf of someone else, it can also help to:
- Keep notes of what the person tells you is important to them.
- Look through other things they recorded or wrote down themselves (e.g. diaries, home videos, or their household budgets).
- Speak to their family, close friends, work colleagues, and anyone else who knows them well.
- Consult with anyone involved in their care and treatment (e.g. care home staff and personal carers).
- Be aware of any behaviour changes or reactions (it can tell you a lot about the wishes and feelings of someone who cannot express things in words).
Restricting Human and Civil Rights
The decisions your make must restrict the other person’s human and civil rights as little as possible. Even so, you must never make decisions on behalf of someone about certain things, like:
- Human relationships (e.g. giving consent to sex, getting married, or getting divorced).
- Voting in a political election.
Note: The Mental Capacity Act 2005 guidance and subsequent code of practice has further information on making decisions for others.
Making Difficult Decisions and Disagreements
It is best to consult the person along with their family, trusted friends, and carers on the most difficult decisions. Often, arranging a ‘best interests’ meeting can help the appointee reach an agreement.
But, in the most challenging situations where you are still unable to agree, you can:
- Contact the Office of the Public Guardian (OPG) for expert advice on how to reach agreement.
- Search through the list of civil mediation providers that work in your area.
- Get help from one of the independent mental capacity advocates who can represent their best interests.
- Seek assistance from the social services team at the local council authority (for disagreements about care).
- Contact the Court of Protection and apply for a one off decision (for disagreements about any serious issues).
Checking Someone Else’s Mental Capacity
As a rule, not having mental capacity is due to a problem with the way that the brain functions. Typical examples include:
- A severe brain injury
- An illness (e.g. dementia)
- Severe learning disabilities
Mental capacity can improve and deteriorate at different times. This is quite common with dementia and some other mental illnesses. It is not uncommon for a person to recover mental capacity (e.g. after suffering a severe stroke).
You must check whether a person has enough mental capacity to make a decision (at the time it needs making). They will be able to make the decision if they can:
- Communicate a decision in any way besides speaking (e.g. by blinking or squeezing a hand).
- Remember the information given to them for long enough to make a decision.
- Understand enough of the necessary information (e.g. what the consequences would be).
- Weigh up the different options and make a choice.
Note: Making a bad or ‘strange’ decision by itself is not necessarily grounds for you to decide that a person lacks mental capacity.
Avoid making a decision on behalf of someone else if it can wait until they may be able to do it themselves. Even though the person may not be able to make a decision at a certain time, be aware that may:
- Be able to make the decision in the future at another time.
- Have enough capacity to make decisions about certain other things.
Getting Expert Help to Check Mental Capacity
Consider asking the doctor (or other medical professional) to assess the mental capacity of the person. You must follow the Mental Capacity Act code of practice when checking mental capacity.