The phrase "best interests" appears throughout guidance for LPA attorneys, but what it actually requires in practice is often poorly understood. It is not simply a matter of doing what you think is right, or what the family prefers, or what is most convenient. The Mental Capacity Act 2005 sets out a structured process for reaching best interests decisions, and following it is both a legal duty and your strongest protection as an attorney.
The five principles of the Mental Capacity Act 2005
Section 1 of the Mental Capacity Act 2005 sets out five principles that underpin everything an attorney does. They are worth understanding properly because they shape how every decision should be approached.
- Presume capacity. A person must be assumed to have mental capacity unless it is established otherwise. You cannot assume someone lacks capacity because of their age, diagnosis, or appearance
- Support decision-making. Before concluding someone lacks capacity for a decision, you must take all practical steps to support them to make it themselves
- Unwise decisions do not mean lack of capacity. People have the right to make decisions others might consider unwise. That alone does not mean they lack capacity
- Act in best interests. Any act done or decision made for a person who lacks capacity must be in their best interests
- Choose the least restrictive option. Before acting, consider whether there is a less restrictive way to achieve the same outcome
What section 4 of the Mental Capacity Act requires
Section 4 sets out how best interests must be determined. It is not a simple checklist, but a structured weighing of multiple considerations. When making a decision on behalf of the donor, you must:
- Consider whether the donor is likely to regain capacity in the future, and if so, whether the decision can wait
- Permit and encourage the donor to participate in the decision as fully as possible, even if they cannot make the decision themselves
- Consider the donor’s past and present wishes, feelings, beliefs and values, including anything they expressed in writing while they had capacity
- Consider the views of anyone named in the LPA as someone to consult, as well as family members, carers, and other relevant people
- Not be motivated by a desire to bring about the donor’s death when making health or welfare decisions
- Consider all relevant circumstances, not just the most obvious or convenient ones
Importantly, best interests is not the same as what the attorney thinks is best, or what the family prefers. The donor’s own wishes, even if they can no longer express them, must be central to the process.
How to apply the best interests test in practice
For most day-to-day decisions, the best interests process does not require a lengthy written analysis. But for any decision that is significant, irreversible, or potentially contested, you should work through the following steps:
- Check whether the donor has capacity for this specific decision at this specific time. Capacity is decision-specific and can fluctuate
- If the donor lacks capacity, gather relevant information: their known wishes, their values, anything they said or wrote when they had capacity
- Identify who should be consulted: family members, carers, GPs, specialists, anyone the donor would have wanted involved
- Consider all realistic options, not just the most obvious one
- Weigh the options against the donor’s best interests, their known wishes, and the least restrictive principle
- Make the decision and document your reasoning clearly
Best interests in a real situation
An attorney is deciding whether to move her mother from her current care home, which is expensive and some distance from the family, to a less expensive one nearby. Her mother has severe dementia and cannot express a preference. The attorney considers: her mother always said she valued her independence and did not want to be a burden; she has formed relationships with staff at the current home; the family would visit more at a nearby home; the cost saving would preserve more of her estate. After consulting the care manager and her siblings, the attorney decides the move is in her mother’s best interests given all these factors, and records her reasoning. This is the process working as it should.
Why you must document your reasoning
The OPG cannot know how you reached a decision unless you tell them. An undocumented decision looks, from the outside, like a decision made without proper thought. A well-documented decision, even an imperfect one, demonstrates that you applied the right process.
If a family member complains to the OPG, or if the OPG initiates a compliance review, the first thing they will ask for is your records. An attorney who can produce clear, dated notes explaining their reasoning for each significant decision is in a very different position from one who cannot.
You can read more about what specifically to record in our guide to LPA record keeping, and about how OPG investigations work in our article on what the OPG can ask for.
The best interests test is not about being perfect. It is about being systematic. An attorney who works through the right questions, consults the right people, and records their reasoning is fulfilling their legal duty, even if the outcome later turns out not to have been ideal.
Common mistakes in applying the best interests test
- Substituting your own judgment for the donor’s wishes. What you would want in their position is irrelevant; what they would have wanted is what matters
- Making decisions without consulting anyone. Unless it is genuinely urgent, you should involve relevant people
- Confusing best interests with what is cheapest or most convenient for the family
- Assuming the donor lacks capacity for everything because they have a diagnosis. Capacity is decision-specific
- Making decisions without any record of the reasoning
- Waiting too long to make decisions when inaction is itself harmful to the donor
Document your best interests reasoning properly
Wardly walks you through every decision with structured prompts for best interests reasoning, alternatives considered, and persons consulted. All stored securely in a tamper-evident log.
Start your free logFrequently asked questions
Does the best interests test apply to every decision I make as attorney?
It applies whenever you are making a decision for someone who lacks capacity for that specific decision. For routine, low-significance decisions, a detailed written analysis is not required. For significant, irreversible, or potentially contested decisions, documenting your reasoning is both good practice and important legal protection.
What if I do not know what the donor would have wanted?
Do your best to gather evidence. Talk to people who knew them well: family members, carers, longtime friends, their GP. Look for anything written when they had capacity, such as advance statements, letters, or notes. If you genuinely cannot determine their wishes, focus on what a reasonable person in their circumstances would consider beneficial.
Can I override the donor's previously stated wishes if I think they are wrong?
The donor's wishes are a central part of the best interests analysis, but they are not absolutely binding. If following their stated wishes would cause serious harm or is no longer possible given changed circumstances, you may need to depart from them. Document your reasoning carefully in these cases, as they are the ones most likely to be scrutinised.
What is the least restrictive principle?
When deciding between options, you should choose the one that restricts the donor's rights and freedoms as little as possible while still meeting their needs. For example, if someone can manage at home with additional care support, moving them into residential care is more restrictive and should not be the default choice unless genuinely necessary.
Who counts as a relevant person to consult?
Anyone named in the LPA as someone to consult, as well as other people who have an interest in the donor's welfare. This typically includes close family members, regular carers, GPs and specialists for health-related decisions, and social workers where they are involved in the donor's care.
What if family members disagree with my decision?
Your legal duty is to the donor, not to achieve family consensus. Document the views of family members, show that you considered them, and then make the decision you believe is in the donor's best interests. If there is a serious dispute that cannot be resolved, the Court of Protection can make a declaration on the matter.