Best interest decisions and mental capacity

Our right to have our decisions respected and to self-determination is fundamental to who we are. However, an adult who is diagnosed with a learning disability, brain injury or with a mental health condition which interferes with their ability to make their own decisions may rely on family or carers to make decisions on their behalf.

Major decisions can include matters such as:

• where a person lives;
• the arrangements for their care;
• whether and how they should have contact with other people; and
• whether they have capacity to decide about marriage and sexual relations.

The Mental Capacity Act 2005 provides a statutory framework to ensure that, where a person lacks capacity to make a decision themselves, those caring for them will make those decisions ‘in their best interests’.  When there is a major decision to be made and there is a dispute about this, the Court of Protection steps in to consider firstly whether the person does in fact lack capacity to make the decision and, if they do, where applicable, what decision would be in their best interests.

If you are a relative of someone who is subject to an application to the Court of Protection, or if you advocate for someone for whom a major decision needs to be made, you may need legal advice.

We can advise on:

• whether a family member should apply to be a party to Court of Protection proceedings concerning a vulnerable adult;
• how someone who is the subject of Court of Protection proceedings should participate in proceedings;
• where social services have decided an option for a person’s residence and care, whether alternatives should be pursued so that the court can made the final decision about which option is in a person’s best interests; and
• challenges to the assessments used by social services of a person’s mental capacity to make a particular decision

Miles & Partners is regularly instructed by the Official Solicitor and others (including relatives) acting as a ‘litigation friend’ for people who are subject of Court of Protection proceedings.

In addition, three of our solicitors, Rachel Turner, Floyd Porter and Andrew Bowmer, have been appointed as ‘Accredited Legal Representatives’ which enables them to represent people without the relevant decision-making capacity in appropriate court proceedings.

Funding for legal advice or representation

Subject to your means, we may be able to obtain legal aid funding to bring a challenge to an unlawful decision.

Once we understand your circumstances, we will advise what funding might be available and discuss which payment options might work best for you.