Making the best of it

The Office of the Public Guardian paid me a panel deputy assurance visit recently. This was a fairly intense process – necessarily so – and it did focus my mind on what I do when I look after the financial affairs of someone else for their benefit, and in their “best interests”.

It is clear from the Mental Capacity Act 2005 and the code of practice that we are meant to have our clients’ best interests in mind in every decision we make. On a daily basis, this is easier said than done, especially as the nitty-gritty about exactly how we should do this is quite limited.

In fact, the code of practice confirms that “the term ‘best interests’ is not actually defined by the Act” and it contains only one rather brief example of how to apply best interests to property and financial affairs decisions. We are told that we need to consider the person’s past and present wishes, feelings, beliefs and values “and other factors” as well as asking close family and friends what they think the client may have done.

At the risk of being facetious, one of my clients has a history of being terrible with money: running up huge credit card debts, not paying utility bills, gambling, getting into trouble with the law and generally being feckless. Arguably, if I applied what the code of practice says, I would never pay a bill on his behalf again, and he certainly wouldn’t pay my fees. When he had capacity, he believed that accumulating cash and only paying it out to fruit machines was the way to live.

Of course, it is in his best interests to pay his care home fees and have his money properly invested to provide some security for the future. His circumstances are completely different from when he was managing his money, and, as the decision maker, I am allowed some discretion.

However, I’m lucky with this client. Some cases are referred with no more information than is contained on the COP1, and seemingly no friends or family who can be approached for any insight into their wishes and beliefs. Even my overactive imagination can struggle to project the deeper workings of a client’s personality from nothing.

Best interests checklist Does the person lack capacity to make the decision?         Are you making the decision based on the person’s age, appearance, behaviour or condition? Is there a time in the foreseeable future where the person will recover sufficiently to make the decision? (The answer could be that you don’t know.) Has the person been able to participate in the decision? (If no, explain why.) What are the person’s wishes, feelings, beliefs, values or other factors relevant to the decision? Have you consulted anyone involved with the person or interested in the person’s welfare about this decision? (If no, explain why.) Details: What is your decision? What are your reasons for making this decision? What did people you consulted say was in the person’s best interests? Do you agree with what the people you consulted said? What other factors did you consider?

 

A difficulty that arises from the lack of specifics in the code of practice is that our files need to be clear and ordered, we need to keep notes and records, and we shouldn’t spend disproportionate amounts of time on our clients’ matters.

Against this background, I created a checklist to support and record the more significant decisions that I make on my clients’ behalf. The OPG described it as “excellent” during its assurance visit because it shows that the correct thought process is being followed. I imagine that two fee earners could work through it on the same matter and potentially come to a different decision. (See box.)

But I don’t use it because it makes the ‘right’ decision for my clients, I use it to support my thinking and to make sure I don’t base decisions on what I would want to happen if it was me who lacked capacity.

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser