How Attorneys Must Act in Your Best Interests
The legal duty at the heart of every decision an attorney makes under an LPA.
Written by James Tyrrell · Reviewed by Anthony Dalton · Last reviewed
Every decision an LPA attorney makes must be in the donor’s best interests — this is a legal requirement under Section 4 of the Mental Capacity Act 2005. The duty applies to every decision, whether it concerns finances, property, healthcare, or welfare. But “best interests” is not simply the “medically best” or “financially best” outcome — it is a structured assessment of what the donor would have wanted, taking into account their wishes, values, beliefs, and the views of people who care for them. This guide explains the legal framework and provides practical guidance for attorneys.
At a glance
- Every decision an attorney makes must be in the donor's best interests — this is a legal requirement under the Mental Capacity Act 2005
- Best interests is not just the "medically best" or "financially best" option; it includes the donor's values, wishes, and emotional wellbeing
- Attorneys must follow the Section 4 checklist, consult relevant people, and choose the least restrictive option
- Failing to act in the donor's best interests can lead to OPG investigation, Court of Protection removal, or criminal prosecution
What Does "Best Interests" Mean?
The Mental Capacity Act 2005 does not provide a single fixed definition of "best interests." Instead, it sets out a checklist of factors that decision-makers must work through when determining what is in someone's best interests. This is deliberate — best interests is meant to be a flexible concept that takes account of the individual person's unique circumstances, values, and wishes.
Crucially, best interests goes far beyond just the "medical best" or "financial best" outcome. It encompasses emotional, social, and spiritual considerations. A decision that is clinically optimal might not be in the donor's best interests if it conflicts with their deeply held values or would cause them significant distress.
The Best Interests Checklist
Section 4 of the Mental Capacity Act sets out the key factors an attorney must consider:
- Whether the person might regain capacity — if the decision can wait until the donor is able to make it themselves, it should be delayed if practical
- Encouraging participation — the donor should be involved in the decision as much as possible, even if they lack full capacity
- The donor's past and present wishes and feelings — including any written statements made when they had capacity
- The donor's beliefs and values — including religious, cultural, and moral beliefs that would influence their decision
- Other factors the donor would consider — anything else the donor would take into account if they were making the decision themselves
- Views of others — consulting anyone named by the donor, carers, family members, and anyone else interested in the donor's welfare
Key point: Best interests is not about what the attorney thinks is best. It is about what the donor would have wanted, taking into account all relevant circumstances. The donor's own views and values must be the starting point.
Considering the Donor's Wishes
The donor's wishes carry significant weight in the best interests assessment. While they are not the sole determining factor, the Supreme Court has confirmed that a person's previously expressed wishes should be given serious consideration, particularly if they were clearly and consistently stated while the person had capacity.
This is one reason why it is so valuable for donors to include detailed preferences in their LPA, and to have open conversations with their attorneys about their values and wishes. The more guidance an attorney has about what the donor would have wanted, the better equipped they are to make genuine best interests decisions.
In practice, though, there may be situations where following the donor's wishes would put them at serious risk of harm. The attorney must then weigh the donor's wishes against the potential harm and make a balanced judgment. This can be one of the most difficult aspects of the attorney's role.
Who Should an Attorney Consult Before Making Decisions?
The Mental Capacity Act requires that, where practical and appropriate, an attorney should consult with certain people when making a best interests decision. This includes:
- Anyone named by the donor as someone to be consulted on decisions
- Other attorneys appointed under the same or a different LPA
- Family members and close friends who are involved in the donor's care
- Paid carers and healthcare professionals involved in the donor's care
Consultation does not mean that the attorney must follow everyone else's opinion. The attorney retains the final decision-making authority. However, gathering different perspectives can help build a fuller picture of what is in the donor's best interests and can also provide evidence that the attorney has followed a proper decision-making process.
Why Record Keeping Matters for Best Interests
Good record keeping is a vital part of the duties of an attorney and is closely linked to the best interests principle. Attorneys should keep a written record of significant decisions, including:
- What the decision was about
- What factors were considered
- Who was consulted and what they said
- What the donor's known wishes were on the matter
- Why the particular decision was reached
- What alternatives were considered and why they were rejected
These records serve two purposes. First, they help the attorney think through decisions carefully and systematically. Second, they provide evidence that the attorney has acted properly, which is invaluable if the decision is ever questioned by family members, the OPG, or the Court of Protection.
Choosing the Least Restrictive Option
An important part of acting in someone's best interests is choosing the least restrictive option available. This principle is enshrined in Section 1(6) of the Mental Capacity Act and means that before making a decision, the attorney should consider whether there is a way to achieve the desired outcome that interferes less with the donor's rights and freedoms.
For example, if the donor needs additional care support, the attorney should first consider options that allow the donor to remain in their own home before looking at residential care. If the donor's finances need restructuring, the attorney should consider the simplest changes before taking drastic action.
What Happens If Best Interests Are Not Followed?
If an attorney fails to act in the donor's best interests, the consequences can be serious. Anyone who is concerned about an attorney's conduct can report the matter to the Office of the Public Guardian (OPG). The OPG can investigate and, if necessary, apply to the Court of Protection for the attorney to be removed. In extreme cases, attorneys who deliberately act against the donor's interests can face criminal prosecution.
For more information about the boundaries of an attorney's powers, see our guides on what attorneys are not allowed to do and the Mental Capacity Act and LPAs.
Tip: If you are appointed as an attorney, create a "decision diary" where you note down important decisions and your reasoning. This simple habit can protect both you and the donor, and demonstrates that you take your responsibilities seriously.
When you're ready to name your attorneys and create your LPA, our guided service makes the process straightforward. See pricing.
Key Takeaways
- Start with the donor's wishes — the donor's previously expressed views, values, and beliefs must be the starting point for every decision, not what the attorney personally thinks is best.
- Follow the Section 4 checklist — the Mental Capacity Act sets out specific factors to consider, including whether the donor might regain capacity and the views of people involved in their care.
- Choose the least restrictive option — before making a decision, consider whether there is a way to achieve the outcome that interferes less with the donor's rights and freedoms.
- Keep a decision diary — recording your reasoning for significant decisions protects both you and the donor if a decision is ever questioned by the OPG or Court of Protection.
- Good faith protects you — an attorney who acts honestly and follows the best interests checklist is protected from personal liability, even if the outcome is imperfect.
People Often Ask
Does "best interests" always mean doing what the donor asked for?
Not always. The donor's previously expressed wishes carry significant weight, but they are not the sole factor. If following those wishes would put the donor at serious risk of harm, the attorney must weigh all the circumstances and may need to make a different decision.
Can an attorney be held personally liable for a best interests decision?
An attorney who acts honestly, in good faith, and follows the best interests checklist in the Mental Capacity Act 2005 is protected from personal liability. However, an attorney who deliberately acts against the donor's interests or is negligent in their duties can face investigation by the OPG and potential removal by the Court of Protection.
Who decides if an attorney is not acting in the donor's best interests?
Anyone can report concerns to the Office of the Public Guardian. The OPG will investigate and, if the concern is serious, can refer the case to the Court of Protection, which has the power to remove the attorney or revoke the LPA entirely.
This guide was last reviewed and updated on . Information is based on current legislation and OPG guidance for England and Wales.
Official Guidance
Relevant government resources
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