Mental Capacity – An Unwise Decision

Posted on: January 31st, 2019

Lauren Kendell explains how to determine if a loved one is making an unwise decision and how you can support them. 

We are regularly contacted by people who are concerned that a relative might be making an unwise decision. If you believe someone is making an unwise decision, it is important to think about what an unwise decision actually means, and how this differs from not having the capacity to make a decision.

A decision is made by using a logical and constant thought process, and by evaluating the risks and consequences of that decision. An example to use is vegetarianism; we are regularly informed of the potential risks of eating meat and the benefits of a plant-based diet, as seen in the news recently. Some people choose to follow a vegetarian diet and some people choose to eat meat, and both lifestyles are not illegal. Depending on your view, either decision could be seen as unwise; it just depends on what your personal views are aligned with.

If your relative has followed the above process of thinking the decision through and still decides to proceed, then this may be considered as an unwise decision. If your relative is unable to follow the above process, then it may be that they lack capacity to make that decision, and certain steps need to be taken in order to confirm this.
The following considerations are useful if you are concerned about a decision that your relative wants to make:

  1. Do you have any authority in place? If you have a property and affairs, or health and welfare Lasting Power of Attorney or a Deputyship in place, then these allow you to make certain decisions on a person’s behalf. You should keep in mind that a person is not to be treated as lacking capacity to make a decision, merely because they make an unwise decision.
  2. If you do not currently have any authority in place and you have concerns over your relative’s capacity to manage their finances or health and welfare, then we would advise discussing this with them (if appropriate). You should ask them if they would allow their GP to carry out a capacity assessment to determine whether they can manage their finances or health and welfare. Once this assessment is completed, if the answer is ‘yes they can’, then unfortunately you cannot do anything further from a legal perspective, as the decision is ultimately their choice. However, even though your relative has capacity to make the decision, you can still offer your advice and support them through the decision making process, if they are happy for you to do so. If the answer is ‘no they do not have capacity’ then we would recommend you discuss the possibility of a Deputyship with one of our team, in order to allow you or one of our Professional Deputies to assist with the management of your relative’s property and affairs or health and welfare. You can also instruct a private professional to carry out a capacity assessment, for example a psychiatrist. Bear in mind that the GP or private professional may charge for the capacity assessment.

We would encourage you to discuss your concerns with your relative before speaking to a solicitor, as trying to understand why they want to make that decision may resolve your concerns. However, if this conversation is unsuccessful, a solicitor can assist you with providing a way forward.

Once in a while, we all have the tendency to make unwise spending or health choices; however, if you are concerned about a relative, please do not hesitate to contact Lauren Kendell or a member of our Court of Protection team to discuss your concerns further.