Who can legally make health decisions for me if I cannot?
Capacity is decision-specific. "Next of kin" has no legal status in English law. Authority comes from a lasting power of attorney or an advance decision made while you still had capacity — and from nothing else.
- Difficulty
- intermediate
- Time
- 10 min
- Read
- 5 min
- Safety
- caution
Short answer
While you have capacity, you decide. If you lose it, a valid advance decision refusing a specific treatment is binding on that treatment. Otherwise a registered health and welfare lasting power of attorney lets your attorney decide, but only once capacity is gone. Failing those, the clinical team decides in your best interests and consults family. Next of kin has no legal definition or status and confers no power to consent or refuse.
Almost everyone believes their next of kin can make decisions for them. In English law the term has no legal definition or status at all — it is a practical label for who to ring. The authority people assume it carries has to be created deliberately, in advance, and it cannot be created afterwards.
Safety
Step by step
- Understand what capacity means.It is decision-specific and time-specific. Someone can have capacity to decide one thing and not another, and capacity can fluctuate. It is assumed unless there is reason to think otherwise, and while you have it for a decision, nobody else may consent or refuse on your behalf.
- Learn the truth about next of kin.The term has no legal definition or status in English law. It is used constantly in hospitals as a practical shorthand for who to contact, and it carries no power to consent to or refuse treatment. Family are sometimes asked to sign things they cannot legally authorise.
- Understand a health and welfare lasting power of attorney.A document you make while you have capacity, appointing someone to make health and welfare decisions for you. Unlike the property and affairs type, it can only be used once you have lost capacity. It covers life-sustaining treatment only if you specifically said so on the form, and it must be registered with the Office of the Public Guardian to be usable.
- Understand an advance decision to refuse treatment.A decision made now to refuse a specific treatment in future circumstances. Where it is valid and applies to the situation, it is legally binding on clinicians. It refuses; it cannot demand a particular treatment.
- Get the requirements right for life-sustaining treatment.An advance decision refusing life-sustaining treatment must be written down, signed by you and by a witness, and must include a statement that it applies even if your life is at risk. Without all three it is not binding on that treatment.
- Note that the later document generally governs.An advance decision and a health and welfare LPA can conflict. Broadly, whichever was made later takes effect for the point they conflict on, so if you have both, keep track of the order and review them together.
- Know what happens with neither.The clinical team makes the decision in your best interests, and is required to consult those close to you about your wishes, beliefs and values. Family are consulted and heard; they are not the decision-maker.
- Write down what you would want, even informally.An advance statement of wishes is not legally binding, and it is taken into account in a best interests decision and it makes the conversation far easier for everyone. It costs nothing to write.
- Tell people and store it findable.A document nobody can find does nothing. Tell your GP practice, give copies to your attorneys and anyone likely to be contacted, and consider noting its existence on your medical record and in your phone's medical ID.
- Check what applies where you live.The framework above is the Mental Capacity Act 2005, which covers England and Wales. Scotland operates under the Adults with Incapacity (Scotland) Act 2000, with different documents and different terminology, and Northern Ireland has its own legislation. Do not assume the English arrangements transfer.
Tips
- Making a health and welfare LPA is the single highest-value hour of paperwork most people never do. It has to be made while capacity is intact, which is exactly why it gets left.
- Talk to whoever you appoint. An attorney who has never discussed what you would want is being asked to guess under pressure.
- If you have strong views about a specific treatment, an advance decision is the instrument that binds; an LPA delegates the judgement to a person. They do different jobs and many people want both.
Common mistakes
- Assuming being married or being a parent gives authority — For an adult, it does not. Marriage and parenthood confer no automatic power to consent to or refuse treatment for another adult, and this surprises almost everyone.
- Waiting until someone is unwell to make an LPA — It has to be made while the person has capacity to make it. Once that is gone, the only route is a Court of Protection application, which is slower, dearer and less flexible.
- Writing an advance decision that only says what you would want — An advance decision refuses specific treatment. A wish to receive something is an advance statement, which is influential and not binding. Knowing which you have written matters.
- Making an LPA and not registering it — An unregistered LPA cannot be used. Registration takes time, so it is done at the point of making it rather than at the point of needing it.
If it doesn't work
A hospital is asking a relative to sign a treatment decision
Cause: The common practice of treating next of kin as a decision-maker — Fix: Ask what legal authority is being relied on. If there is no LPA or deputyship, the decision is the clinical team's, made in best interests after consulting the family — which is a different thing from the family consenting.
Someone has lost capacity and there is no LPA
Cause: It was never made — Fix: For health and welfare, the clinical team decides in best interests. For finances, an application to the Court of Protection to become a deputy is the route, and it takes months. Take advice early.
You want to be sure a particular treatment would be refused
Cause: An LPA delegates judgement rather than binding it — Fix: An advance decision is the instrument for that, with the strict requirements above if it covers life-sustaining treatment. It is worth getting help with the wording.
Questions people ask
What does next of kin actually do, then?
It identifies who the hospital contacts, who is kept informed, and who is consulted about what you would have wanted. That is genuinely useful and it is not authority.
Can my attorney refuse life-sustaining treatment?
Only if you gave them that power expressly on the LPA form. It is a specific box, and without it the decision on life-sustaining treatment remains a best interests decision for the clinical team.
Is an advance decision the same as a living will?
"Living will" is the everyday term. The legal instrument in England and Wales is an advance decision to refuse treatment, with the requirements set out above.
Does a DNACPR form mean the same thing?
No. A DNACPR is a clinical decision recorded by clinicians about CPR specifically, made in consultation with you or those close to you. An advance decision is your own legally binding refusal. They are different documents made by different people.