Who can make decisions for someone who lacks capacity?
Written by Hilary Cragg | Care Support Team | 13 May 2024
Navigating decisions for a loved one who may lack capacity when it comes to making decisions can be overwhelming.
Understanding who has the authority to make these decisions is crucial for ensuring the well-being and best interests of the person at the centre of the decision-making process as well as everyone involved.
In situations where a loved one may face challenges with decision-making capacity, it's natural to feel uncertain about the best course of action. During these times, having clarity about who can provide support, and the legal rights and processes can provide much-needed reassurance and guidance.
Court of Protection Deputies
When a loved one lacks the capacity to make decisions for themselves and there are no suitable arrangements in place, the Court of Protection may appoint a deputy to act on their behalf. These deputies undergo a rigorous legal process and are granted specific powers to make decisions in the individual's best interests. From managing finances to making healthcare and welfare decisions, Court of Protection deputies play a vital role in safeguarding the rights and interests of vulnerable individuals.
Lasting Power of Attorney (LPA)
LPAs are powerful legal documents that allow individuals to appoint trusted individuals as attorneys to make decisions on their behalf if they lose capacity in the future. LPA holders have a duty to act in accordance with the person's wishes and best interests, as outlined in the document. This can include decisions about healthcare, welfare, financial matters, and more. LPAs offer individuals the opportunity to retain a level of control over their affairs and ensure their preferences are respected even when they are unable to directly express them.
Find out more about LPAs here.
Family Members and Caregivers
Family members and caregivers often play a significant role in decision-making for individuals who lack capacity. While they may not have formal legal authority like deputies or attorneys, their input and involvement are invaluable. Family members and caregivers are often intimately familiar with the person’s preferences, values, and needs, allowing them to make decisions that are in the individual's best interests. Their support and advocacy can help ensure that the individual receives the care and support they require.
Lawyers / Legal Professionals
Understanding the legalities of this can be daunting. A lawyer or legal professional specialising in mental capacity law can provide valuable assistance in obtaining the necessary legal arrangements. From guiding individuals through the process of creating LPAs to representing them in Court of Protection proceedings, legal professionals offer expertise and support every step of the way. By partnering with a lawyer, families can ensure that the rights of their loved ones are protected, their wishes are respected, and their loved one's best interests remain paramount.
In times of uncertainty, having a clear understanding of the different processes and types of decision makers for someone who lacks capacity is invaluable. Whether it's through a Court of Protection deputy, a Lasting Power of Attorney, or the support of family members and caregivers, there are avenues to ensure the individual's well-being and best interests are safeguarded. By knowing who can make decisions and how those decisions are made, individuals and their loved ones can navigate the complexities of incapacity with confidence and peace of mind.
If you’d like to speak with our specialist team to find out more information, you can get in touch with Hilary Cragg, Partner, directly by calling 01752 827047 or emailing enquiries@nash.co.uk.
