What If Someone Else Had to Approve Who Visits You in Later Life?

When high-profile stories like the plight of Sir Ranulph Fiennes make headline news, they bring to light complex legal issues that thousands of families quietly navigate every day. At the heart of these public headlines is a crucial legal tool: the Health and Welfare Lasting Power of Attorney (LPA).

When an individual loses mental capacity, their appointed attorney is tasked with making life-altering welfare decisions, including who is allowed to visit and who can be barred from contact. But does an attorney have unlimited power to “ban” family members or long-time friends? How do human rights and legal capacity interplay when loved ones disagree?

Here, our specialist Court of Protection solicitors explain how mental capacity laws govern visitor disputes, the powers of health and welfare attorneys, and the options available when disagreements arise.

The legal presumption of capacity

The law assumes we can make all types of decisions, including about contact with other people, unless and until there is evidence (normally medical evidence) to the contrary. This is known as the “legal presumption of capacity” under the Mental Capacity Act 2005. 

An attorney decision about who visits you, when you may no longer have capacity to make that decision yourself, is no different.

Everyday decisions can vary enormously, from the very complex to the very simple. Donors with, for example, progressive dementia, may lack the capacity and understanding to make complicated financial investment decisions but may retain the capacity to decide who they want (or do not want) to visit them.

Acting in the donor’s best interests

For individuals who lack even this capacity and understanding (either temporarily through something like traumatic brain injury or permanently, because of progressive dementia), a decision can be made by a health and welfare attorney (or, if necessary, by the Court of Protection). Still, this decision must be in the donor’s best interests.

It is not, however, uncommon for there to be very different, even polar opposite views expressed by different people, about what is in the donor’s best interests concerning contact. This is where disputes can arise.

An attorney who wishes to restrict or “ban” specific individuals from visiting cannot simply impose their own personal preferences. They act as a trustee of somebody else’s affairs and must consult and weigh all factors carefully and objectively.

This does not mean slavishly following what the donor currently seems to want. If a donor lacks capacity, their judgement regarding visitors may be clouded, impaired, or delusional, potentially leading to distressing, difficult, or even dangerous situations.

“Magnetic importance”: Present wishes vs. wider risks

A donor’s past views (expressed when they held full capacity) and their current “wishes and feelings” remain a critical factor in any best interests assessment. In legal terms, these carry what judges describe as “magnetic importance”.

While welcoming a visitor does not automatically mean that visitor must be permitted, any decision to abruptly “cut off” a regular visitor requires substantial, objective justification.

Situations frequently arise where a donor wants to see a visitor, simply because they do not (or no longer can) appreciate or understand the wider picture of abuse or the toxic nature of the relationship that particular visitor represents. In these situations, it can be justifiable for the attorney to intervene. This is, however, a highly fact-sensitive matter. Every decision will be different. 

Human rights and proportionality

Donors retain fundamental Article 8 human rights to enjoy a private life and family life/relationships, and these rights must not be ignored. Interrupting these rights must usually be based on clear risk assessment principles:

• A visitor who acted inappropriately on one isolated occasion in the past may not represent an ongoing or future risk.
• A blanket, permanent “ban” can represent a wholly disproportionate infringement on the donor’s Article 8 rights.
• Section 4 of the Mental Capacity Act 2005 requires attorneys to consult with family members and interested parties where “practicable and appropriate”.

Consulting effectively involves seeking representations from the proposed visitor and taking into account the views of wider family and friends who may be impacted.

The Role of the Court of Protection

When consensus cannot be reached, the Court of Protection can intervene and issue binding rulings. The Court steps in when no attorney is appointed, or when an attorney’s decisions are challenged as unreasonable, biased, or unfair.

Before this, however, the Court will always encourage dialogue, discussion and negotiation before any court application is made. There must be attempts at resolution or, at a minimum, the disputed issues must be narrowed to a bare minimum so that the court is given a very focused decision to make.

Resolution without a Court application can save those involved in a dispute a large amount of legal costs and may successfully avoid its escalation into full-scale litigation.

How we can help

While we cannot comment on individual media cases such as Sir Ranulph Fiennes’, high-profile news stories highlight issues that affect families across the country every day.

Whether you are an attorney seeking to make a compliant best-interests decision, a donor facing unexpected restrictions, or a concerned family member being prevented from seeing a loved one, expert legal guidance is vital.

At Richard Nelson LLP, consultant solicitor Ian Cranefield and our specialist Court of Protection solicitors bring an extensive track record in advising and litigating complex, emotionally charged welfare and contact disputes.

Early advice can help shape an effective strategy, diffuse tensions, and achieve a resolution swiftly, protecting both your loved one’s rights and your family’s peace of mind.