For Families
I have lost count of the number of times I have heard it. In hospital corridors, in care home offices, in living rooms. "It's fine, I'm her next of kin."
It is one of the most widely believed things in the country. And in England and Wales it is wrong.
Next of kin is a name on a form. It tells a hospital who to ring. It does not give that person the right to make decisions about your treatment, to choose where you live, to speak to your bank, or to sell your house to pay for your care. Not your husband. Not your wife. Not your daughter who has looked after you for ten years.
That comes as a shock to most families, and it usually comes at the worst possible moment.
The law here is the Mental Capacity Act 2005. It starts from a good place. Every adult is assumed to have capacity. You are allowed to make decisions other people think are unwise. Nobody gets to take over because you are old, or ill, or stubborn.
But if there comes a point where you cannot make a particular decision, and you have not given anyone the legal authority to make it for you, the decision falls to whoever is responsible for the thing being decided. For medical treatment, that is the doctor. For where you live and what care you receive, it is usually the local authority social worker. They must act in your best interests, and the Act says they must consult the people who care about you and take account of what you would have wanted.
Consult. Not obey.
Most of the time that works well enough. Families and professionals agree, and life goes on. But when they do not agree, the family finds out very quickly how little standing they have. And when it comes to money, there is no informal route at all. A bank will not take instructions from your son because he is your son. Without legal authority the account is simply frozen to everyone but you.
Then the gap is wider. If there is nobody appropriate to consult, and the decision is a serious one such as major medical treatment or a move into a care home, the hospital or council must bring in an Independent Mental Capacity Advocate. That is a real safeguard, and the advocates I have worked alongside take it seriously. But they meet you for the first time when you are already unable to tell them who you are. They are working from notes.
I have written a fuller guide on this: No family? Who makes decisions if you cannot.
Three things do the work, and all of them have to be done while you still have capacity.
A lasting power of attorney. There are two kinds, one for health and welfare and one for property and financial affairs. You choose the people you trust, called attorneys, and the document is registered with the Office of the Public Guardian, which currently charges £92 for each one. A health and welfare attorney can only act once you have lost capacity for the decision in question. A financial attorney can, if you allow it, help earlier. Each one needs a certificate provider, an independent person who confirms you understand what you are signing and are not under pressure. That can be someone who has known you well for two years, or a professional with the right skills, and government guidance lists a registered social worker among them.
An advance decision to refuse treatment. This is legally binding if it is valid and applies to the situation. If it refuses life-sustaining treatment it has to be in writing, signed, witnessed, and say plainly that it applies even if your life is at risk.
An advance statement. Not binding, but anyone making a best interests decision for you has to take it into account. This is where you write down the things that make your life yours. Where you want to live. Who you want near you. What you would never put up with. The dog. The radio station. The things a stranger reading your notes would never guess.
If someone has already lost capacity and there is no lasting power of attorney, the route is an application to the Court of Protection for a deputy to be appointed. It works, but it is slower, it costs more, it involves annual supervision, and the court chooses the deputy, not the person. Welfare deputyships are granted rarely. It is the difference between choosing for yourself and having it chosen for you.
Solicitors draft the documents, and they do it well. What they do not usually do is sit in your kitchen for two hours and work out what you would actually want, in the detail that matters when the day comes. What a good day looks like. Who you trust and who you do not. What care at home would really involve in your house, with your stairs, on your street. What the council will and will not fund. What to ask a care home before you ever need one.
That is social work. It is the same skill I have used for more than thirteen years in other settings, and it is the heart of the later life planning work I now offer: an independent assessment, a written plan in plain English that your attorneys and your solicitor can work from, and, where it helps, acting as the certificate provider for your lasting power of attorney.
I do not act as anyone's attorney and I do not handle money. My job is to make sure your voice is on paper, clearly, before anyone needs to guess.
Published: 22 September 2026
No. In England and Wales next of kin has no legal power over an adult's treatment. If you cannot decide, the clinician decides in your best interests after consulting the people close to you, unless you have a health and welfare attorney or a valid advance decision.
Not an account in your sole name. They need a registered property and financial affairs lasting power of attorney, or a deputyship order from the Court of Protection.
Not necessarily. A diagnosis is not the same as lacking capacity. The question is whether the person understands this decision at the time they make it. An independent capacity assessment recorded at the time protects the document if it is ever challenged.
Someone who has known you well for at least two years, or a professional with the relevant skills such as a solicitor, doctor or registered social worker. They cannot be one of your attorneys or a member of your or their family.