Mental capacity and best interests: how decisions get made for you
8 min read · Written by an HCPC-registered Occupational Therapist
If you cannot make a particular decision at a particular time, someone else must make it in your best interests. The law is specific about what they have to take into account — and much of it is information only you can supply, in advance.
The evidence in brief
- Capacity is decision-specific and time-specific, never a global label
- The Mental Capacity Act 2005 sets out five principles, including a presumption of capacity
- Section 4 requires decision-makers to consider your past and present wishes, feelings, beliefs and values
- NICE NG108 recommends supporting people to record their wishes and to plan while they have capacity
The five statutory principles
The Mental Capacity Act 2005 applies in England and Wales and governs decisions made for people aged 16 and over who lack capacity for a specific decision.
- Capacity is presumed unless established otherwise
- A person must be given all practicable support to make their own decision first
- An unwise decision is not evidence of incapacity
- Any decision made for someone must be in their best interests
- It must be the least restrictive option for their rights and freedom
What 'best interests' legally requires
Section 4 of the Act sets out a checklist. Decision-makers must consider whether capacity may return, must involve the person as far as possible, and must take into account, so far as reasonably ascertainable, the person's past and present wishes and feelings, their beliefs and values, and any other factors they would likely have considered.
This is the crux: the law obliges people to consider your wishes and values, but it cannot conjure them. Where nothing is recorded, decision-makers fall back on what relatives remember or infer — which is where families disagree, and where disputes and Court of Protection applications begin.
What NICE recommends
NICE guideline NG108 on decision-making and mental capacity recommends that services support people to plan ahead while they have capacity, and that practitioners record and share those wishes so they are available when needed. It highlights that advance care planning should be an ongoing, revisitable conversation, offered proactively rather than at the point of crisis.
Practical implication
A structured, professionally written record of your identity, values, routines and preferences directly serves the section 4 checklist. It gives attorneys, clinicians and social workers documented evidence of what you would have chosen — rather than a best guess made under pressure.
Sources
Do it before you need it.
The Future You® Life Profile is an Occupational Therapist-led picture of the person behind the paperwork — who you are, what matters to you and what you would want others to know. It complements, and does not replace, an LPA, advance decision, care plan or medical record.
General information for England and Wales. Not legal advice, and not a substitute for an individual clinical assessment.