The Myth of ‘Next of Kin’

There is a widespread but incorrect belief that an adult’s closest family member or next-of-kin is entitled to make decisions on their behalf if the adult lacks decision-making capacity. This is the belief that a relation, such as the spouse or partner, an adult child of a parent or the parent of an adult child who lacks capacity has legal authority to:

• access information about them;
• take decisions on their behalf in relation to their property and personal welfare;
• give or withhold consent for their medical treatment.

This is not true outside of a formal legal arrangement.

At present, pending commencement of the Assisted Decision-Making (Capacity) Act 2015, these legal arrangements could only be:

1. an Enduring Power of Attorney, under the Powers of Attorney Act 1996, which does not extend to decisions about healthcare; or
2. in wardship (and to a limited extent), if the next of kin is the committee for an adult ward of court.

Survey by Sage Advocacy

The extent of this misconception was demonstrated in a survey conducted by Sage Advocacy in 2018.

32% of respondents believed that if they were to lose their decision-making capacity, that their next of kin would be authorised to access their bank accounts and to manage their money.

57 % believed that their next of kin would be authorised to take health care decisions.

Where does this misunderstanding come from?

In relation to health care, there are reports that the misunderstanding about the status of the next of kin was evident during the COVID vaccine campaign. Some parents of adult children, and adult children of parents who lacked capacity honestly and in good faith believed that they were entitled to give or refuse consent to the vaccine.

The fact that the term ‘next-of-kin’ is often used in healthcare practice and appears on admission forms and in consent documentation has perhaps contributed to the level of confusion. There also appears to be a tendency in healthcare to require a signature on a consent from, even from somebody who is not authorised to give consent before treatment is provided.

In healthcare ‘next-of-kin’ should mean no more than your emergency contact or the person you have designated to be informed about your treatment and progress. It would help if the term was replaced and not used at all.

This is not to say that the views of close family members are irrelevant. They may well be the best people to provide information about their loved ones’ will and preferences, beliefs, and values. This is different though from according them status as a decision-maker.

What difference will the commencement of the Assisted Decision-Making (Capacity) Act 2015 make?

When it comes to the Assisted Decision-Making (Capacity) Act 2015, it is important to address the misunderstanding about next of kin for two reasons.

Firstly, there may be a belief on the part of close family members that, as they are already authorised to make decisions for their loved one who lacks decision-making capacity, the framework that is available under the 2015 Act is unnecessary or does not apply to them.

Secondly, when informed that they do not have this authority, family members may believe that the 2015 Act is taking something away from them.

Instead, the 2015 Act provides a valuable opportunity for a person’s family member to step into one of the formal roles. This will only become necessary if the person cannot decide independently, and if it is the person’s will and preference that the family member should be involved.

The 2015 Act allows us to move away from the grey area and ideas about the next-of-kin, which are based only on custom and practice. It allows us to adopt a secure right-based model with better protections for all concerned.