The Myth of Next of kin: why you need a lasting power of attorney (Video)

Professor Keith Brown, Director of the Centre for Post-Qualifying Social work, Bournemouth University, dispels the commonly held belief that being a near relative of someone gives you the right to make decisions on their behalf should they lose mental capacity. He sets out the importance of Lasting Powers of Attorney and Advance Decisions to Refuse Treatment, both part of the Mental Capacity Act, as the best ways to maintain your control over decision-making.

• Video transcript Open

  Professor Keith Brown, Director of the Centre for Post-Qualifying Social work, Bournemouth University

  Most people out there assume, and understandably so, that their loved one, their husband, their wife, their partner, is defacto their next of kin if anything happened to them, the next of kin would have the ability to interject or to act on their behalf.

  But in legal terms, in law, the term next of kin has no basis at all. There is just no such thing as next of kin. So advanced decisions are really important as well, and they’re wrapped up within lasting powers of attorney health and welfare. And they allow you, the person that’s got permission from that person, to act on your behalf to ensure that your wishes are carried out.

  And they’re really, really important because if you’re in hospital, the doctors, the consultants, the medics, the nurses, they have to legally by law, listen to your view and seek consent from you. So in the same way as if you’ve got capacity, the doctor would have to seek an informed consent from you could do an operation. In effect, they’ve got to seek the informed consent of the person holding the lasting power of attorney. It’s that powerful and that important.

  Really what we’ve been doing here at Bournemouth University is working with the National Mental Capacity Forum. And the National Mental Capacity Forum has been set up by the Government as a joint initiative between the Ministry of Justice and the Department of Health to kind of promote the Mental Capacity Act and a fuller understanding of the implications of what that Act says. And one of the things we’re done here at Bournemouth University is write the guidance for all hospitals, all social work departments, and indeed the country to help them understanding next of kin. What it means and what it doesn’t mean, and to raise that profile of the real importance of all us to get lasting power of attorney.

  One of the things that concerns me often is that most people think that lasting powers of attorney is for the old people, for older people. You look into it when you’re at that stage of life when you’re starting to plan for what happens when you’re no longer here. But of course, tragic events can happen to us all, young and old. You could have a stroke this evening. You could be in a car crash. You could have a tragic accident which means that you’re no longer able to articulate and give informed consent. So you need a lasting power of attorney so that somebody can actually intervene on your behalf. Your loved one, your husband, your wife, your son, your daughter, your mother, your father therefore has the legal power to say what will and what won’t happen to you. It is that important. And everybody I think should not just consider having a will but also a lasting power of attorney.