The Law Commission is consulting on the procedure for making a will. If, like me, the thought of reading about the law on making a will sounds a bit yawntastic and the thought of actually making a will is a task that sounds even less fun than a tax return, this consultation might be easily overlooked. However it raises a really interesting and important question: when a person needs support to make an important legal decision, who should provide that support?
Formalising support
The Mental Capacity Act 2005 does have a ‘support principle’, but it is very weak in comparison with the fully fledged frameworks for supported decision making that are developing in other countries. It simply says that ‘A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.’ It doesn’t create a freestanding duty to provide support, or offer much clarity on who should provide support or how. In contrast, in many countries such as Canada, Australia and (soon) Ireland, a person can nominate a chosen and trusted individual to formally act as a supporter. Those individuals are given clear responsibilities, such as helping the person to find information relevant to the decision, helping to explain it to them and weighing up the options, helping to communicate their decision to others and helping to ensure that decision is enforced.
Lots of people are of course already doing this for relatives or friends (whether disabled or not), but formalising this can bring certain benefits – it can help provide clarity on the role of supporters , help them to be taken more seriously by professionals or services who would rather oust them from decision making processes or deny them access to information, and it can create a clearer regulatory framework for monitoring and addressing inappropriate or abusive “support”. When I hear stories of people’s supporters (be they family, friends or even advocates) being booted out of capacity assessments or care planning meetings, or otherwise denied information that they need to support that individual, I think: it’s about time we had a framework like this. And the Law Commission agrees – in their earlier report on Mental Capacity and Deprivation of Liberty they recommended that the government amend the MCA to create a power to make regulations for a formal supported decision making scheme. All of that is policymaker speak for saying “we’re not quite at the point of knowing precisely what kind of scheme we want right now, but we want to be able to do this in the future when we’ve thought about it more and properly consulted on the options”.
In many supported decision making schemes around the world, it is ‘natural supporters’ who act in this role – a person’s family and friends. The key point is that it is up to the individual to choose who supports them; a family member could not simply appoint themselves as a supporter. In fact, in some schemes individuals chose relatives or friends who were not immediate family, and sometimes relatives were upset by that. But the key point is that support relies on trust and good support relies on personal knowledge of the individual. For many (but not all) of us, this is available within our existing circles of family or friends. Some individuals are not fortunate enough to have this in their existing social or family networks, and for them options such as advocacy, peer support or other models of support would be important.
Can family be trusted to provide support in making a will?
In the Law Commission’s recent consultation on Making a Will, they propose that there should be a supported decision making scheme to help individuals in making a will. I think this is a really good thing, and at this level of abstraction it certainly is in keeping with the spirit of the UN Convention on the Rights of Persons with Disabilities (CRPD). Article 12 CRPD requires states to ensure that persons with disabilities have access to the support they need when exercising legal capacity (i.e. doing things like making a will or a contract). However, the Commission goes on to consider whether friends and family can act in this role, or whether it should be restricted to professionals only. It says:
We tentatively favour any supporter role in a scheme for supported wills being filled by a professional, despite the disadvantage of the cost to the testator. We take this view because of the increased risk of undue influence and conflicts of interest if the role were to be undertaken by family and friends. We also note that it may be necessary for a supporter to carry indemnity insurance, which would suggest that the role is one better suited to professionals. (Making a Will, para 4.45)
I am really bothered about this approach for two reasons:
- The spirit of ‘supported decision making’ under the CRPD is based on the individual’s will and preferences. This means letting them choose how they are supported.
- This approach communicates a deep distrust of families and other non-professional supporters by the state.
You can read my full response to the consultation here: L Series 2017 Response – Law Com 231. In essence I argue that a blanket prohibition on families and friends acting as supporters is a disproportionately paternalistic response to the small risk of undue influence that arises for some, and is not in keeping with the CRPD. I argue that there are many important benefits of allowing families and friends to act as supporters, and that in fact formalising the support that many are already in practice providing will help make that support safer rather than riskier. Instead, I argue that the role for professionals should be around creating safeguards against undue influence – for example providing independent advice (a classic legal safeguard to rebut a presumption of undue influence), an assessment of whether the individual has made their decision freely, or even acting as facilitators for support arrangements to provide assistance to the individual and the supporter. This latter option could potentially be expanded to include support for other decisions, and have a holistic and capacity building effect across all areas of the individual’s life.
The views that family and friends are untrustworthy when it comes to support, and that formalising supported decision-making will create a greater risk of undue influence than already exists within informal support relationships, are depressingly common responses when people first come across the CRPD. I think it’s time we started challenging these responses, and thinking creatively and constructively about how to respond to the risks that do exist whilst building a more positive and inclusive vision of support for all.
The Small Places 