However, the concept can be far more nuanced and complicated in cases involving adults. This is partly because they have likely spent decades making decisions for themselves. For example, how do you properly handle medical decisions for someone who has been a Jehovah’s Witness for 70+ years? There are also difficulties around finances and property, not least because other parties are likely to have strong views on how these should be handled and what is ‘best’. We have even had rulings from the Court of Protection that it may not be in a vulnerable person’s best interests to save tax.
It is not hard to see how the concept of ‘best interests’ starts to drift and becomes untethered from an objective anchor. So often what is in one family member’s eyes clearly in someone’s best interests is an anathema to another family member. We frequently see situations, for example, where families and carers disagree over how someone should be looked after. One dispute centred on whether a very vulnerable elderly person should be fed through their nose or mouth. Both adult children had their parent’s best interests at heart, but their opposing views were hard to separate from their sibling rivalry.
We have been involved with cases where family members, or even members of staff argue about which country a vulnerable person should live in. Perhaps the most extreme example is where family members were arguing shortly before their parent’s death; worryingly some of the family were keen for there to be a move to a jurisdiction that had highly favourable (i.e. low) death duties.
While there is a framework that the Court uses to analyse decisions, it is very much open to a subjective overlay. Experts will often be brought in to assess a situation but if they are new to the family’s situation it is often difficult for them to be able to properly assess or understand the relationships and dynamics within the family that may be having an impact on the situation in question. Practically who controls care staff on a day to day basis – either in terms of reporting lines or paying the bills – can have a significant impact both in the views they express but also what they are prepared to tell experts. Experience has taught us that, often people who have little to no contact with the person in question will present themselves as being very close.
What it adds up to is a danger of an overly paternalistic process that is at risk of not taking individuals’ wishes and feelings into account nearly enough; or perhaps more accurately not taking sufficient time to establish what the person’s wishes and feelings are and what they may actually mean in practice. Often it is the latter process, of thinking practically and asking “what does this look like on the ground”, that gets overlooked.
This is not to say that substituted judgment is free from problems. It cannot be possible to know for certain what someone would do, particularly where circumstances have changed for themselves, their family or their property.