Best Interests Checklist Mental Capacity Act
You've been appointed as your parent's attorney or deputy. A decision needs to be made — about medical treatment, about a care home placement, about selling the family home. You think you know what's right. But under the Mental Capacity Act 2005, "what I think is right" is not the legal standard. Section 4 requires something more specific.
What "Best Interests" Actually Means
Best interests is not a formula. It's a structured process that forces decision-makers to look beyond their own preferences and consider the situation from the perspective of the person who has lost capacity.
The Act specifically prohibits making assumptions based on age, appearance, condition, or behaviour. You cannot decide that a care home is in your parent's best interests simply because they have dementia. You must work through the checklist.
The Section 4 Checklist
Every best interests decision must consider:
Whether capacity might return. If the decision can reasonably wait until your parent regains capacity — even temporarily — it should wait. This is particularly relevant for people with fluctuating capacity due to conditions like delirium or medication effects.
Your parent's past and present wishes. What did they say they wanted before losing capacity? Written statements, conversations with family, preferences expressed to a GP — all of these carry weight. A Health and Welfare LPA that includes specific instructions or preferences in Section 7 makes this dramatically easier.
Their beliefs and values. Religious convictions, cultural values, moral principles — these all inform what your parent would have wanted. A lifelong vegetarian's dietary preferences don't stop mattering because they can't express them anymore.
Other factors they would have considered. What mattered to them when they were making decisions? Independence? Being close to family? Staying in a familiar area? Financial prudence?
The views of others. You must consult anyone named by your parent as someone to be consulted, anyone engaged in caring for them, and any other attorney or deputy. If there's no one appropriate to consult, the local authority should appoint an Independent Mental Capacity Advocate (IMCA).
Common Mistakes Families Make
Substituting your own judgement. "I would want to stay at home" is not the same as "Mum would want to stay at home." The question is always what the person themselves would have wanted.
Ignoring past wishes because they're inconvenient. If your parent repeatedly said they never wanted to go into a care home, you can't override that preference simply because a care home is more convenient for the family. You can make a different decision if safety or medical necessity requires it — but you must document why the override was necessary.
Not consulting other family members. If you're one of several attorneys appointed jointly and severally, you can technically make decisions alone. But the best interests checklist requires you to take into account the views of people close to P. Failing to consult siblings or a surviving spouse can lead to challenges and OPG investigations.
Free Download
Get the England — Power of Attorney Quick-Start Checklist
Everything in this article as a printable checklist — plus action plans and reference guides you can start using today.
Documenting Your Decision
There is no mandatory form for recording a best interests assessment (unless you're a professional making a clinical decision). But keeping a written record of what you considered, who you consulted, and why you reached your conclusion protects you if the decision is later questioned.
For major decisions — care home placement, property sale, medical treatment changes — a brief written note is worth the ten minutes it takes. Record the date, the decision, what factors you weighed, and what P would likely have wanted based on everything you know about them.
When Interests Conflict
What happens when your parent's best interests conflict with a family member's wishes? The Act is clear: P's interests come first. An attorney who sells P's house below market value to benefit a sibling, or who refuses a care home placement to preserve an inheritance, is breaching their fiduciary duty.
The OPG investigates complaints about attorneys and deputies, and can apply to the court to have them removed. The threshold for a breach is lower than most families realise.
The England Lasting Power of Attorney & Deputyship Kit includes a structured best interests framework with documentation templates — so your family has a defensible process in place before a difficult decision needs to be made.
Get Your Free England — Power of Attorney Quick-Start Checklist
Download the England — Power of Attorney Quick-Start Checklist — a printable guide with checklists, scripts, and action plans you can start using today.