This is a fictional dilemma based on the MDU's files.

The scene

A GP rang the MDU advice line to discuss a situation involving the neighbour of an elderly patient who had a diagnosis of dementia.

The patient lived at home with carers attending and had no family the practice was aware of. The neighbour had been bringing her to her appointments for many years and was always present on home visits. The GP had already assessed the patient as lacking capacity to make most decisions about her care.

The neighbour had recently asked for a call back to discuss the patient. The neighbour asked the GP to list them on the records as the patient's next of kin, as there did not appear to be any other relatives.

The neighbour felt that the patient was no longer able to understand and make medical decisions, and that they, as the only next of kin, should have the authority to make decisions on her behalf.

The neighbour also asked the GP to note in the records that the patient had said she would like her estate to be inherited by the neighbour in the event of her death, and felt that evidence in the records, along with next of kin status, would allow that. The GP asked if the patient had made a will, but the neighbour did not think so.

The GP had no concerns about consulting the neighbour about the patient's care, as she had clearly been closely involved with the patient for many years, even before the patient's cognitive function deteriorated. But she was concerned that denoting the neighbour as next of kin in the records could have unforeseen legal consequences, especially as regards the inheritance of the patient's estate.

MDU advice

The MDU adviser agreed that care was needed with this situation. The term next of kin has a legal definition in the UK, depending on the context, and in medical scenarios is usually the closest relative by blood or marriage, not a friend or neighbour.

However, next of kin status does not grant automatic legal authority to make healthcare decisions. Under legislation¹ for patients lacking capacity, this would usually require a lasting power of attorney (LPA) for health and welfare. This would need to have been granted by the patient when she had the capacity to do so, and would only be effective when the patient lost capacity.

Healthcare providers would usually consult a next of kin when making decisions, but are not legally bound to follow their instructions without a valid LPA.

If someone dies without a will, the estate is passed to the deceased's legal next of kin in a particular order, starting with the spouse or civil partner and followed by closest blood relatives. Unmarried partners or friends have no automatic legal rights to inherit under intestacy rules.

The adviser also suggested it was important to consider whether the neighbour's interest in the patient's estate and authority to make medical decisions might indicate a conflict of interest and risk to the patient. If so, the GP may wish to consider referring the patient to the adult safeguarding team.

Outcome

The GP agreed to note on the records the neighbour's interest in the patient's welfare and as the first point of contact, and told the neighbour that they would take their views into account when making decisions.

The GP also said that if the neighbour wished to have the power to make medical decisions on the patient's behalf, they could apply to the Court of Protection to be appointed a deputy for health and welfare. They told the neighbour they could seek advice from a solicitor about applying to the Court of Protection, and regarding the patient's estate on death.

The GP also referred the patient to the adult safeguarding team as a precaution.