Few phrases in law carry the same moral weight as “best interests.” It appears compassionate, reassuring and self-evidently right. If someone cannot make a decision independently, surely we should act in their best interests.
For decades, this principle has shaped decision-making in areas such as guardianship, administration, healthcare and child protection. It has provided courts, tribunals and professionals with a framework for making difficult decisions on behalf of others.
Yet there is a question that deserves greater attention.
Whose idea of “best” are we applying?
At first glance, the answer may seem obvious. Decision-makers are expected to act objectively, consider the available evidence and reach a conclusion that protects the individual. However, the process is rarely as straightforward as it appears.
Every decision-maker brings their own experiences, values and assumptions. Organisations operate within policies designed to minimise risk. Families may have differing views about what a loved one would want. Professionals often face competing legal, ethical and practical considerations. Within this complex environment, “best interests” can become less about discovering what matters most to the individual and more about determining what others believe is the safest or most appropriate course of action.
This distinction is important because it changes the question being asked.
Instead of asking:
“What would this person choose?”
we begin asking:
“What do I think is best for this person?”
Although the difference may appear subtle, its implications are profound.
Historically, substitute decision-making developed from a desire to protect vulnerable people from harm. That objective remains both important and necessary. There will always be circumstances where intervention is required to prevent exploitation, abuse or significant financial loss. The law has an essential role in providing those protections.
However, contemporary understandings of disability rights have challenged the assumption that protection should automatically come through substitution.
The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) encourages a different way of thinking. Rather than focusing first on replacing a person’s decisions, it emphasises supporting people to exercise their own legal capacity wherever possible. The emphasis shifts from doing things for people to working with people.
This is not simply a legal change. It represents a philosophical shift.
Imagine an older person living with early-stage dementia who wishes to continue managing a modest weekly budget. They occasionally make purchases that others consider unnecessary or unwise. A substitute decision-maker focused solely on eliminating financial risk might remove that responsibility altogether.
But is eliminating every poor decision necessarily the best outcome?
Most of us make purchases we later regret. We occasionally spend too much, trust the wrong person or make choices that others question. These experiences are part of ordinary life. They help define our independence and our identity.
If we deny those opportunities only to people who require support, we risk creating a system where protection gradually becomes control.
Supported decision-making asks us to consider another possibility.
Instead of immediately removing decision-making authority, can we provide the assistance needed for the person to continue participating in their own decisions? Can information be presented differently? Can trusted supporters assist without taking over? Can safeguards reduce risk while preserving autonomy?
These questions acknowledge that autonomy and protection need not be opposing goals.
Of course, there will be situations where substitute decision-making remains necessary. Some individuals may be unable to make particular decisions even with extensive support. Others may face immediate risks that require intervention. Recognising this reality does not diminish the importance of supported decision-making. Rather, it highlights the need to ensure that substitute decision-making remains a measure of last resort rather than the default response.
Perhaps the greatest challenge lies not in changing legislation, but in changing our mindset.
For generations, professionals have been trained to ask what outcome is in a person’s best interests. Increasingly, the more appropriate question may be:
“Have we done everything reasonably possible to understand and give effect to this person’s own wishes, values and preferences?”
That question is more demanding. It requires listening before deciding. It requires curiosity instead of assumption. It requires recognising that dignity sometimes includes the freedom to make imperfect choices.
The phrase “best interests” has served an important purpose in the development of protective legal frameworks. But as our understanding of autonomy, disability rights and supported decision-making continues to evolve, perhaps it is time to recognise that the best outcome is not always the one chosen by someone else.
Sometimes, the most respectful decision is not deciding for a person at all.
What do you think? Has the concept of “best interests” reached the limits of its usefulness, or does it remain the most appropriate framework for protecting vulnerable people? I welcome your thoughts and respectful discussion in the comments.
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