Identification of Nearest Relative - living with foster parent for 10 years

Law and practice Mental Health Act
1

Hi, if a patient has been living with a foster parent for 10 years and the patient is now an adult, would the foster parent be identified as the correct Nearest Relative over any biological parent who the patient still has contact with? I’ve considered s26(7) where that person could be added to the bottom of the list but as she was ordinarily residing with the foster parent prior to admission, would that relative (foster parent) be the preferred Nearest Relative (s26(4))?

2

Yes, unless the patient was married.

3

Thank you Stephen.

4

I don’t think so. 26(7) specifically says that a person who is not on the list with whom the patient has been living for at least 5 years can be considered the Nearest Relative but, in effect, goes in at the bottom of the list. As far as I know, unless the patient had been formally adopted, a foster parent does not rise up the list, even if they had PR.

There might be a good reason to apply to displace the Nearest Relative in that instance though.

Sean Waters

5

Thank you Tammy. That’s why I’m a bit confused as s26(7) states that they would go to the bottom of the list but when considering s26(4), as she was ordinarily residing with the foster parent prior to admission, wouldn’t the foster parent be preferred?

Also what is the position for Nearest Relatives who are estranged? e.g. patient has no parents or children, bur has two siblings, the eldest is estranged. Would the Nearest Relative still be the eldest? Or would the sibling in contact with the patient be able to act as the Nearest Relative?

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6

If the patient was living with her foster parents at the time she was admitted and had been so living for at least 5 years, the foster parents would be a relative, at the bottom of the list by virtue of section 26(7) and by virtue of section 26(4) the older foster parent would become the nearest relative, unless the patient was married.

Estrangement has no effect on identifying the nearest relative. If the patient had not been living with her foster parents, in the absence of spouse/equivalent, birth parents or her own child, the eldest brother would be the nearest relative, even though estranged. The estrangement might give grounds for displacement under section 29, (e): not a suitable person.

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7

Thanks again Stephen.