In England and Wales, nobody automatically has the right to make decisions for another adult. That includes a husband or wife, a son or daughter, and anyone described as "next of kin". If you lose the mental capacity to make a decision and you have not appointed an attorney, decisions about your health and care are made by the professionals responsible for your care, acting in your best interests under the Mental Capacity Act 2005. Decisions about your money need an application to the Court of Protection.
I am an independent social worker and a qualified Best Interests Assessor. Most of my working life has been spent in rooms where professionals make decisions about somebody who is not able to speak for themselves in that moment. The thing I have learned from those rooms is simple. The decisions are better, and kinder, when somebody present actually knows the person, or when the person took the trouble to write down what mattered to them while they could. If you do not have family to be that somebody, you can still arrange for it. This guide explains how.
Does "next of kin" mean anything legally?
Less than almost everyone assumes. Hospitals ask for a next of kin so they know who to ring. It gives that person no power to consent to your treatment, refuse it, choose your care home or see your bank statements. Families are often astonished to discover this at the worst possible moment, and people living alone can spend years worrying about having nobody to put in the box. The box matters far less than the documents I describe below.
What happens if I can no longer decide for myself?
The Mental Capacity Act starts from the assumption that you can make your own decisions, and it says you must be given every practical help to do so before anyone concludes that you cannot. Capacity is judged one decision at a time. Someone may be unable to manage an investment portfolio and perfectly able to decide where they want to live.
Where a person cannot make a particular decision, whoever has to make it must act in that person's best interests. The Act tells them how. They must consider your past and present wishes and feelings, and in particular any written statement you made when you had capacity. They must consider the beliefs and values that would have influenced you. And they must consult, where it is practicable, anyone you named as someone to be consulted, anyone caring for you or interested in your welfare, and any attorney or deputy.
Read that list again with your own situation in mind. Two of the things on it are entirely within your control today, whether or not you have any family at all: a written statement of your wishes, and the name of someone you want to be consulted.
What is an Independent Mental Capacity Advocate?
The Act recognises that some people have nobody. Where a person lacks capacity and there is no one appropriate to consult, the NHS or the local authority must instruct an Independent Mental Capacity Advocate, known as an IMCA, before serious medical treatment is given or before a long-term move into a hospital or care home is arranged. IMCAs do valuable work. But an IMCA meets you for the first time after you have lost the ability to explain yourself, and has to piece together who you are from records and from whoever happens to be around. It is a safety net, not a plan.
What can I put in place now?
A lasting power of attorney. There are two kinds, one for property and financial affairs and one for health and welfare, and most people should think about both. You choose one or more attorneys and, ideally, replacements. The document has to be signed in the right order, certified by an independent certificate provider who confirms you understand it and are not under pressure, and registered with the Office of the Public Guardian before it can be used. Registration takes weeks and sometimes months, so this is not something to leave until it is needed.
An advance decision to refuse treatment. If there are treatments you would not want in particular circumstances, you can refuse them in advance. A valid and applicable advance decision is legally binding. If it refuses life-sustaining treatment it must be written, signed and witnessed, and must say that it applies even if your life is at risk. Talk to your GP about it, so that it is clear, specific and on your medical record.
A written statement of your wishes. This is the broader document: where you would want to be cared for, what makes a day good or bad for you, your faith or your firm lack of one, the dog, the radio station, the things you would find undignified. It is not binding, but the law says it must be considered, and a clear one changes the conversation in the room.
Someone named to be consulted. You can name any person as someone you want consulted about your best interests. They get no power to decide. They get a voice, and decision makers have to listen to it where practicable. It can be a friend. It can also be a professional who has taken the time to know you.
The practical layer. A will, made with a solicitor. An emergency sheet with your GP, medication, key holder and who to ring. A note of where your documents are. Your wishes lodged with your GP surgery, so that they follow you into hospital.
Who can be my attorney if I have no family?
Anyone over 18 whom you trust and who agrees. People choose friends, neighbours, godchildren, the son or daughter of an old friend. Try to include someone younger than you, and name replacements, because attorneys age too. Some solicitors will act as a professional attorney for your finances, for a fee that should be written into the document. Professionals willing to act as attorney for health and welfare are much harder to find, because those decisions are personal and can arise at three in the morning.
If you cannot find a health and welfare attorney, do not give up on planning. An advance decision, a good written statement of wishes and a named person to be consulted will, between them, do a great deal of the same work.
Where does an independent social worker fit?
A solicitor drafts your legal documents and an independent financial adviser helps you plan for care costs. Neither is there to sit with you for an afternoon and work out what you actually want, to notice in two years' time that things are slipping, or to turn up at a hospital discharge meeting and say "that is not what she wanted, and here is what she wrote". That is social work, and it is what I offer through my later life planning service: an assessment and a written plan, a certificate for your lasting power of attorney, capacity assessments where they are needed, and an ongoing independent voice for people who want one.
I am deliberately not your attorney, and I never handle money. That independence is what allows me to certify your power of attorney and to speak up for your wishes without anyone wondering whose interests I am serving.
What should I do first?
Three things, in this order. Write down, on one side of paper, what matters most to you about how you live and how you would want to be cared for. Decide who you trust enough to ask to be your attorney, and ask them. Then book an appointment with a solicitor about lasting powers of attorney and a will. If you would like help with the first of those, or you get stuck on the second, get in touch. The first conversation is free.