Posted On / 17.04.2019

The Problem WITH “Next of Kin” – Lasting Powers of Attorney and Advance Decisions

We are all familiar with the phrase “next of kin”. Indeed hospitals in the past have asked “who is next of kin?”  and they have then sought to ascribe to this person a preferential position in relation to influencing decisions about a person who may then later lack the necessary capacity to make these decisions for themselves. For example, if you are in hospital and cannot consent to a particular treatment or operation, historically these decisions were made by the “next of kin”. This, however, is beginning to change.

Problematically, the expression “next of kin” does not have any legal meaning in the United Kingdom under the Mental Capacity Act 2005. Crucially, this means that your “next of kin” has no legal authority to make decisions for you when you no longer have capacity.

The tendency in the past to try to categorise a person a “next of kin” has the implication of placing that person’s views on a pedestal which has no basis in law and to wrongly relegate the importance of the view of any other connected people. The reliance on the label of “next of kin” could create an authority vacuum in the future where hospitals are becoming increasingly interested in finding out who has the legal authority to actually make these decisions for you. This can be done either by others under Lasting Powers of Attorney or yourself through an Advance Decision.

Lasting Powers of Attorney  

One step that everybody should consider is to make Lasting Power of Attorney  in relation to health and welfare. This document specifically appoints one or more people to have the legal authority to make decisions for you that relate to your health and welfare. This means that your attorneys can make short term decisions relating to hospital treatments if you lack the capacity to do so. However, your attorneys can also make longer term decisions relating to your care, such as deciding where you should live.

When deciding who to appoint as your attorney(s), you should choose somebody that you trust and who will be making decisions that are in your best interests. Usually this might be a spouse, partner or other member of your family.  

Once the document has been prepared, your attorney(s) will only be able to act and make decisions for you when you no longer have mental capacity.  

You can also make a Lasting Power of Attorney for property and financial affairs. Under this document, your attorneys would be able to make decisions for you relating to your property and finances. This can be something as simple as helping you to manage your bank accounts, or in the realm of health care it can include arranging for the payment of certain care and welfare costs. Your attorneys under this document can be the same as those under a health and welfare Lasting Power of Attorney, or they can be completely different people. It is important to note that unlike  a health and welfare Lasting Power of Attorney, a property and finance Lasting Power of Attorney can be used as soon as it is registered, and this includes whilst you still have capacity.

Advance Decisions  

An Advance Decision is a document which sets out what you would like to happen in the future in certain medical situations.  For example, you can stipulate that it is your wish that you remain in your own home for as long as possible and that you do not want to go into a nursing home. Furthermore, you can say that there are certain treatments in the future that you do not want to receive if you no longer have mental capacity to consent to them at the time.

If you make an Advance Decision, you should make sure that you inform your family members about it. You should also consider informing your GP, any carers that you have or members of staff at a care home if applicable. In order for your Advance Decision to be able to function, those around you, particularly medical practitioners, need to be aware of it.

Contact Lesley Eveleigh on 01935 846275 or lesley.eveleigh@battens.co.uk in our Wills and Trusts Department who can advise you on these issues.

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