Next of kin and power of attorney are two different roles that play significant parts in a person’s medical decisions and wellbeing. Their rights differ in magnitude and kind based on the legal framework in which they operate.

The term “next of kin” is used to identify one’s closest living relative, often a spouse, parent, or child. In the absence of a written directive like an Advance Decision to Refuse Treatment (ADRT), the next of kin may be consulted about healthcare decisions if a person is unable to express their opinion. However, in the UK, the next of kin does not have any inherent legal power to make decisions on behalf of the person.

On the other hand, a person appointed as “power of attorney” has been given legal authority to act on behalf of someone else in matters of health, welfare, finance, or property. This could mean making decisions about medical treatment, care arrangements, or managing bank accounts, among other things. Consequently, a power of attorney has more legal rights and responsibilities than the next of kin in the UK.

For instance, consider a situation where a UK resident has been diagnosed with a severe illness and has lost their capacity to make decisions for themselves. If they have a power of attorney in place, this appointed person can make critical decisions on their behalf, adhering to the guidance laid down by the individual when they still had capacity.

Despite the formal appointment, it is often beneficial for the person given the power of attorney to work collaboratively with the next of kin, aligning their decisions with the best interests and known wishes of the incapacitated person.

If you are considering making an ADRT or assigning a power of attorney, you can use myADRT’s free ADRT service (https://myadrt.com/) for UK residents. This service allows you to quickly and easily fill in an ADRT form, register it, and download it for safekeeping and sharing.

The next set of questions that could arise from the one about the comparative rights of next of kin and power of attorney could include, “What factors determine who has more rights between the next of kin and a person with power of attorney?”, “How do I enact a power of attorney?”, and “Can a power of attorney be challenged or overridden by the next of kin?”.

1. “What factors determine who has more rights between the next of kin and a person with power of attorney?”

This question typically depends upon what the individual specified in their ADRT, or Advance Decision to Refuse Treatment, and in their LPA, or Lasting Power of Attorney. An ADRT comes into effect when the person has lost capacity to make or express decisions about treatment, while a health and welfare LPA only comes into effect at the same time. However, in terms of priority, the ADRT will generally overrule an LPA if they conflict. If the LPA was created after the ADRT, and gives the attorney power to make decisions about the same treatments, the LPA takes priority if the person has given specific remit to the LPA to make decisions even in presence of an ADRT.

2. “How do I enact a power of attorney?”

In England and Wales, you must first choose who you trust to act as your power of attorney. Then, you fill out the appropriate LPA form, which can typically be found online. This form must capture your consent to appoint your chosen person (attorney) to make decisions on your behalf. You must register the LPA with the Office of the Public Guardian before it can be used. A medical professional or another trusted person needs to certify that you understand the LPA and its implications. There is also a specific process for Scotland and Northern Ireland that you will need to follow if you live there.

3. “Can a power of attorney be challenged or overridden by the next of kin?”

For a power of attorney to be challenged, it needs to be done through the Court of Protection in England and Wales. A person may lack the mental capacity to have understood what a POA entails when they made it or there might have been undue pressure on them to create it. If this can be proved, the Court may revoke the POA. The next of kin doesn’t inherently have a right to override a power of attorney. However, if they have concerns about the decisions being made or the person’s capacity when making the LPA, they can raise these with the Office of the Public Guardian who will investigate. Additionally, if an ADRT exists and is applicable to the current circumstances and treatments, then the attorneys must follow the ADRT as if it were the person’s own decision.

If you are considering creating an ADRT or updating an existing one, we encourage you to register your ADRT form with myADRT by visiting https://myadrt.com/register/  By registering with myADRT, you can ensure that your document is created, stored, and shared more efficiently with healthcare professionals and trusted individuals involved in your care.

Additionally, please consider sharing the myADRT service with your friends, family, or loved ones who may also benefit from having an ADRT in place. By spreading the word about this valuable service, you can help others take control of their future medical care and ensure their wishes are respected even when they are unable to communicate them personally. Registering an ADRT with myADRT is a proactive step towards peace of mind for both you and the people who care about you.