The Legal Framework: The Mental Capacity Act 2005
In England and Wales, the legal framework governing decisions for those who lack mental capacity is the Mental Capacity Act (MCA) 2005. The Act establishes a set of five core principles that all professionals and carers must follow when dealing with someone who may lack the capacity to make a decision for themselves. The key principle is that any decision made on behalf of an individual must be in their 'best interests.'
This is a common source of confusion, as many people mistakenly believe that being the next of kin gives them the automatic right to make medical choices for a loved one. The MCA, however, does not grant this authority to relatives. While family members and friends will be consulted as part of the 'best interests' process, their wishes do not have a legally binding status in the absence of a Lasting Power of Attorney (LPA).
The Myth of 'Next of Kin' Authority
One of the most persistent misconceptions is that 'next of kin' has legal power. This is simply not the case in the UK. The term has no legal standing when it comes to making decisions about a person's medical treatment, finances, or care when they lose capacity. Without an LPA, a person’s spouse, civil partner, or adult children cannot automatically take over decision-making. This often comes as a shock to families already under significant emotional strain, leading to delays and conflict during an already difficult time.
Who Becomes the Decision-Maker?
In the absence of a registered Health and Welfare Lasting Power of Attorney, the authority to make decisions rests with a hierarchy of professionals and legal bodies, as dictated by the Mental Capacity Act.
The Role of Healthcare Professionals
For immediate and routine medical decisions, the healthcare professional in charge of the patient's care will make the decision based on the best interests principle. This involves considering the person's past wishes, feelings, beliefs, and values, as well as consulting with family members and carers. While family members are consulted, the final decision remains with the medical professional.
The Involvement of the Court of Protection
For more significant or long-term decisions, or when there is a disagreement among family members or with medical staff, the matter may be referred to the Court of Protection. The Court has the authority to make one-off decisions or appoint a deputy to act on the person's behalf for ongoing matters. This process is often lengthy, complex, and costly, adding a heavy burden to families.
The Appointment of a Deputy
If ongoing decisions are required, the Court of Protection can appoint a deputy. Unlike an attorney, who is chosen by the individual while they still have capacity, a deputy is appointed by the court. There are two types of deputyship: Property and Financial Affairs Deputy and Personal Welfare Deputy. While a deputy is commonly appointed to manage finances, personal welfare deputyship is rarer and typically reserved for complex or contentious situations.
The Independent Mental Capacity Advocate (IMCA)
An Independent Mental Capacity Advocate (IMCA) must be appointed by an NHS body or local authority for certain serious decisions involving someone who lacks capacity and has no family or friends to consult. This includes decisions about serious medical treatment or a move to a long-term care setting. The IMCA's role is to ensure the person's rights are protected and their views are considered during the decision-making process.
Comparison: Deputyship vs. Lasting Power of Attorney
| Aspect | Lasting Power of Attorney (LPA) | Deputyship |
|---|---|---|
| Initiation | Appointed by the individual with capacity. | Appointed by the Court of Protection. |
| Control | Full control over who is appointed and their powers. | Court decides who is appointed and grants specific powers. |
| Cost | Typically much lower, involving a one-off registration fee. | High application fees, ongoing supervision fees, and legal costs. |
| Time | Relatively straightforward to set up, requires registration. | Can be a lengthy and slow process through the court system. |
| Supervision | Attorneys are not under annual supervision. The Office of the Public Guardian (OPG) investigates concerns. | Deputies are supervised annually by the OPG and must submit detailed reports. |
| Flexibility | Customisable to the individual's specific wishes. | Powers are determined by the court and are often less flexible. |
The Serious Consequences of Failing to Plan
Ignoring the need for a Lasting Power of Attorney can have profound and distressing consequences for both the individual and their family. Without a nominated attorney, crucial financial and medical decisions can be delayed, potentially affecting care and well-being. Family members may be locked out of decision-making, leading to feelings of frustration and exclusion. Furthermore, the alternative—a Court of Protection deputyship—is not only expensive and time-consuming but removes the individual's choice of who manages their affairs. It places the power in the hands of the court, who may appoint a professional deputy rather than a family member, regardless of family wishes.
Conclusion: The Importance of a Lasting Power of Attorney
In conclusion, the question of who makes medical decisions if there is no power of attorney in the UK highlights the immense importance of proactive legal planning. The law is clear: family members do not have automatic rights to make these critical decisions. Instead, a complex and often slower professional and legal process takes over. By arranging a Lasting Power of Attorney, you ensure that your wishes are respected, that a trusted person of your choice is legally empowered to act on your behalf, and that your family is spared the significant stress, cost, and uncertainty of court proceedings during an already difficult time. For more information, visit the GOV.UK guide to becoming a deputy.
