When you make a significant decision on behalf of someone who lacks capacity, the Mental Capacity Act 2005 requires that you make it in their best interests. That phrase sounds straightforward, but it has a specific legal meaning and a structured process behind it. Writing it down properly is what separates a defensible decision from one that could land you in serious trouble.
Many attorneys make decisions with genuine care and thought, but record them with a single line: “decided X was best.” That is not enough. The OPG, and any court that might review your conduct, will want to see the reasoning. Here is what section 4 of the MCA requires and what a proper best interests record looks like.
What section 4 of the MCA 2005 actually requires
Section 4 sets out the statutory best interests checklist. When making a decision for someone who lacks capacity, you must:
- Consider all the relevant circumstances, not just the most obvious ones
- Consider whether the person is likely to regain capacity, and if so, whether the decision could wait
- Permit and encourage the person to participate in the decision as fully as possible
- Not make the decision based on assumptions about the person’s age, appearance, condition or behaviour
- Consider the person’s past and present wishes, feelings, beliefs and values
- Consult anyone named in the LPA as someone to be consulted, and others involved in the person’s care
- Consider any written statement the person made when they had capacity
This is a checklist, not a tick-box exercise. The point is to think genuinely about what this specific person would have wanted, not what a reasonable person in their position would want in the abstract.
What the record needs to show
A written best interests record does not need to be long. It does need to cover each relevant element of the checklist. For a significant decision, a good record will typically cover:
- What the decision is, described specifically
- The date the decision was made
- Confirmation that you have assessed capacity for this specific decision at this specific time
- The options you considered and why you chose the one you did
- The donor’s past wishes, feelings, values or beliefs that are relevant to this decision, with the source of that knowledge
- Who you consulted and what they said
- Any advance decision or written statement the donor made
- Why you believe the decision reflects the donor’s best interests
Not every decision needs all of these. A decision about routine daily care is different from a decision about moving into a care home or agreeing to a major medical procedure. Scale the record to the significance of the decision.
A best interests record is not a justification written after the fact. It should reflect the thinking that actually informed the decision, written at the time or immediately after.
Good record vs poor record: a worked example
Say you have decided that your father, who has mid-stage dementia, should move from his home into a residential care home. Here is the difference between a poor record and a proper one.
Poor best interests record
“Dad can’t cope at home anymore so I arranged for him to move to Green Gables Care Home on 3rd April. It seemed like the right thing to do.”
Proper best interests record
Decision: to move the donor from his home address to Green Gables Care Home. Date: 3rd April 2025. Capacity: a GP assessment on 18th March confirmed the donor lacks capacity to make decisions about his accommodation and care due to moderate-stage dementia. He cannot retain or weigh information relevant to this decision. The decision cannot wait safely. Options considered: remaining at home with increased care support (visited three agencies), moving to supported living, or moving to residential care. The donor fell twice in the preceding month and a local authority care assessment on 21st March concluded 24-hour oversight was necessary. His home was adapted but the required level of care could not be safely delivered there. Donor’s wishes and values: when the donor had capacity he told his daughter he hoped never to leave his home. We have taken this seriously. We explored all home-based alternatives and only concluded residential care was necessary when the safety risk became clear. The donor also said, on several occasions, that he would not want to be a burden on his family. He valued his independence but was also pragmatic. Green Gables was chosen over two alternatives because it is three miles from his son, it has a dedicated dementia unit, and the monthly fee falls within his means. We visited the home with his daughter on 28th March. The donor was present and appeared relaxed during the visit. Consulted: his daughter (named in the LPA as a person to consult), his GP, and the local authority social worker who completed the care assessment.
The role of past wishes and values
One area that trips up many attorneys is the requirement to consider what the donor would have wanted. This is not about guessing. It is about drawing on what you actually know about the person: conversations you have had, preferences they expressed, values they held, decisions they made when they had capacity.
If the donor wrote anything down, whether in the LPA itself, in a letter, or in any other form, that carries significant weight. If their wishes are only known through conversations, write down what you recall and when those conversations took place. Oral evidence from people who knew the donor well, family members, close friends, a GP, or a carer, is also valuable and should be recorded.
The MCA specifically states that a person’s best interests must not be determined based on assumptions about their age, appearance, condition, or behaviour. This means you cannot simply assume that because someone is elderly and has dementia, they would not care about quality of life, privacy, maintaining relationships, or being near people they love. These things matter and your record should show you have considered them.
Consulting the right people
Section 4 requires you to take reasonable steps to consult anyone caring for the person or interested in their welfare. For most attorneys, this will include other family members, the donor’s GP, care home staff, social workers, and any professional adviser involved in their care.
You do not need everyone to agree. You need to have consulted, to have listened, and to have considered what they said. If you proceeded despite a family member disagreeing, note that in your record and explain why you believed your decision was still in the donor’s best interests. Ignoring disagreement altogether is a much weaker position than addressing it head on.
Why written records matter so much
If your conduct as an attorney is ever questioned, your best interests records are your primary evidence. A complaint to the OPG, a family dispute, or a Court of Protection application will all focus heavily on whether you can show your reasoning, not just your outcome.
Records written at the time the decision was made carry far more credibility than anything reconstructed afterwards. Courts and investigators are experienced at recognising records that have been created retrospectively to cover a complaint. Contemporaneous records, written in plain language and clearly linked to the actual decision, are what protect you.
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Try decision logging freeFrequently asked questions
Does every decision need a best interests record?
Not every minor decision. Day-to-day choices about routine care, meals, or small purchases do not require formal documentation. Any significant decision, particularly those involving accommodation, major medical treatment, substantial financial transactions, or anything you know the donor would have felt strongly about, should have a written record.
What if I do not know what the donor would have wanted?
Do your best to find out. Talk to people who knew the donor well. Look for written statements, diaries, or letters. Consider what kind of person they were and what their values seemed to be. The MCA requires you to consider this, not to have a perfect answer. Record what you found out and how you weighed it up.
Can I make the decision if family members disagree?
Yes, in most cases. Family members do not have a veto over attorney decisions. But you must consult them, consider their views seriously, and record why your decision is still in the donor’s best interests despite the disagreement. If a dispute is serious, a Court of Protection application may be necessary to resolve it.
What if a doctor makes a medical decision on the donor’s behalf?
For health decisions, the treating clinician is usually the decision maker, not the attorney. A Health and Welfare attorney has a role in advocating for the donor’s known wishes and in decisions where the LPA is relevant, but routine medical treatment decisions rest with the clinical team. You should still record what was discussed and what position you took as attorney.