Best Interests Checklist for Attorneys (Mental Capacity Act)

Best interests is a structured legal process

When a donor lacks capacity for a specific decision, attorneys must apply the statutory best-interests framework. This is a legal test, not personal preference.

Section 4 practical checklist

For material decisions, document each item:

1. What exact decision is needed now
2. Capacity position for this decision
3. Options considered (including less restrictive options)
4. Donor's wishes, beliefs, values, and prior statements
5. People consulted and what they said
6. Why final option is proportionate and justified

Capacity remains decision-specific

Do not assume global incapacity. A donor may lack capacity for one decision but retain it for another.

Consultation duties

Where practical and appropriate, consult relevant people. Consultation is not a veto system, but it is central to lawful reasoning.

Less restrictive principle

If two options are workable, prefer the one that interferes less with rights and autonomy.

Record quality determines defensibility

If challenged later, strong notes are your strongest protection. Notes should show process, not just outcome.

Template prompt for decision notes

• Decision needed:
• Capacity evidence:
• Options and risks:
• Donor wishes considered:
• People consulted:
• Chosen option and reasons:
• Why less restrictive options were not selected:

Next reading

• Attorney Record-Keeping and Accounts
• LP1H Guide
• Objections and Safeguarding