Can My Next of Kin Decide About My Care?

It's one of the most common misunderstandings we come across: people assume that if they ever lose the mental capacity to make decisions for themselves, their spouse, partner, or children will automatically be able to step in, to choose where they live, agree to their medical treatment, or manage their care. It feels like common sense. Surely your closest family member, your "next of kin", has the right to speak for you?

The phrase "next of kin" is well-known and well-used but has no real legal standing in England and Wales. It's a term hospitals and care services use informally to identify who they should keep updated about you. But crucially it is not a legal role that grants decision-making power.

So what exactly is a "next of kin", and can I rely on them?

Your next of kin is simply the person a hospital or care provider treats as your main point of contact, often a spouse, civil partner, or adult child. But being someone's next of kin doesn't come with any legal authority. If you lose mental capacity:

• They cannot make medical or care decisions on your behalf. Doctors will usually consult them as part of working out what's in your best interests, but clinicians make the final decision.
• They cannot access or manage your money, even if they're your spouse, civil partner, or child. If your care needs to be paid for, they can't simply dip into your accounts to cover it.

Without a Health and Welfare Lasting Power of Attorney (LPA) in place, no family member, however close, has any automatic legal authority to make medical or care decisions on your behalf.

Can my family decide where I live?

If you lose capacity and there's no Health and Welfare LPA in place, decisions about where you live are made through a "best interests" process. This process typically involves all those involved in your care, including social services and medical professionals, deciding what care you should have and where you should receive that care based on what they believe is in your best interests. As part of that process, they should consult with your family. Indeed, your family may do much of the work researching and visiting care settings to see which they believe is most suitable. Your family's views are an important part of the "best interests" conversation, but they don't have the final say. The decision is made collectively, guided by what's judged to be in your best interests, not by family or who is next of kin.

Can my family decide my medical treatment?

Again, no. Medical decisions follow the same best interests procedure. Your family can, and should, be consulted, and their knowledge of your wishes and values genuinely informs the decision. But it's the clinicians involved in your care who make the final call, not your relatives.

I don't want to be kept alive if there is no hope for recovery and I have no quality of life. Can my next of kin refuse treatment on my behalf?

Again, no. Only you can give consent to or refuse life sustaining treatment. If you lose mental capacity and can no longer give or refuse consent, and if you have no Health and Welfare LPA in place, your doctors will follow the same best interests procedure.

A Health and Welfare LPA is a powerful document to have in place if you want your family to stand up for your wishes about end-of-life care. Not only does the LPA give your chosen Attorneys the right to make general medical decisions on your behalf, it has specific authority for end-of-life decisions, allowing your Attorneys to give consent or refuse consent to life sustaining treatment if they believe that is what you would have wanted.

None of this is designed to shut families out. Best interests decisions genuinely draw on what your loved ones know about you. But if you want your family to have real, legal authority to make decisions and speak for you if you're ever unable to do so yourself, being next of kin isn't enough.

Setting up a Health and Welfare Lasting Power of Attorney

An LPA lets you choose, in advance, exactly who you trust to make decisions about your care, treatment, and living arrangements, so that if the time ever comes, it's your choice of person making the decisions, not a process you have no control over.

An LPA does not dictate what decisions your chosen Attorney must make on your behalf. By setting up a Health and Welfare LPA you are not saying that your Attorneys should refuse treatment. Nor are you saying that your Attorneys should consent to treatment. You are not even requiring your Attorneys to be the decision maker if for some reason they prefer not to. You are simply saying that you trust your Attorneys to make the decision, if they want to, when the time comes and giving them the legal authority to do so.

Our guide on how to make an LPA takes you through the steps in order. It is also worth reading about the two types of LPA and what happens if you have no LPA at all. Our pricing page sets out the cost, and a solicitor on our team checks every LPA before you sign it.

This article is for general information and is not legal advice. If someone close to you has already lost mental capacity, or you want to talk through what powers to give your Attorneys, please get in touch for advice on your own situation.

Sources

• Section 4 of the Mental Capacity Act 2005 on legislation.gov.uk. Sets out the best interests test. Under section 4(7) the decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" anyone engaged in caring for the person or interested in their welfare. That is a duty to consult family, not a power for family to decide. Section 4(9) confirms the decision rests with the person doing the act, who need only reasonably believe it is in the person's best interests.
• Section 9 of the Mental Capacity Act 2005 on legislation.gov.uk. Creates the LPA, which is how a person confers authority over their personal welfare on someone they choose. There is no equivalent provision anywhere in the Act conferring authority on a "next of kin".
• Section 11 of the Mental Capacity Act 2005 on legislation.gov.uk. A personal welfare LPA "does not extend to making such decisions in circumstances other than those where P lacks" capacity, and covers life-sustaining treatment where "the instrument contains express provision to that effect".
• Section 16 of the Mental Capacity Act 2005 on legislation.gov.uk. Where there is no LPA, the Court of Protection may make the decision or appoint a deputy. Being next of kin does not remove the need for one of these routes.
• Make decisions on behalf of someone on GOV.UK. Sets out the two routes to legal authority: a power of attorney given while the person has capacity, or appointment as a Court of Protection deputy. Family relationship alone is not one of them.