Question about next of kin and social security appointeeship

Law and practice Other
1

If a resident with capacity has no one to put down as their next of kin. What would be their options ?

2

Hi Phina

Not entirely sure what you mean by “what would be their options”, but I hope the following helps from a training slide I use (its more info than you probably need/want but i hope it is helpful):

“ Next of kin” (helpful YouTube clip) is NOT recognised in law! No adult can consent on behalf of another adult unless with specific legal authority:

Created with capacity:

Check the OPG Register - Find out if someone has an attorney, deputy or guardian acting for them / View a lasting power of attorney

Also see: How to be a property affairs attorney - How to be a health and welfare attorney - LPA Examples & Guidance

Also see Advance Statements & Advance Care Planning & the Age UK LifeBook | Age UK all very helpful, and although not legal documents still very important to consider (see s4 (6) (a) Mental Capacity Act 2005).

Created if you now lack capacity:

3

Hi James,

Maybe I did not present the question correctly.

A Citizen that I am supporting can decide about day-to-day decision, however, cannot decide around managing her finance. They have not been assessed yet as lacking or lack or does have capacity. Can MCA be completed as they are seeking an appointee to manage their finance on their behalf.

Also, the organisation who will manage her finance are asking for information about NOK as this is the criteria, however, they do not have any family member her in the UK. Or do they have to seek support via an IMCA? Please advise.

4

Hi Phina

Sorry for slow response was training yesterday. Based on what you have said it appears when you say ‘finances’, you mean the benefits that the person receives from the DWP, which means you are talking specifically about appointeeship and if that is the case the Mental Capacity Act does not apply. That might sound odd (it did to me for many years), but i would recommend reading the following:

  • Become an appointee for someone claiming benefits - GOV.UK - you will note the criteria is ‘someone who cannot manage their own affairs because they’re mentally incapable or severely disabled’. Note no mention of the Mental Capacity Act.
  • This link helpfully explains why and how appointeeship and the MCA are distinct - Is Appointeeship Governed by the Mental Capacity Act (2005)? | Appointeeship | Deputyship | Money Management for Vulnerable Adults… Now professionals who deal with appointeeship still use the term ‘capacity’ but it is in fact a different meaning to capacity as articulated in the Mental Capacity Act, the link provided explains this.
  • The above also means that i cannot see what the role of an IMCA would be as the MCA 2005 does not apply if it is purely benefits from DWP.
  • Re the question about NoK, i am guessing based on the information provided, that ‘the organisation who will manage her finance’ are just checking that there is no other person who may wish to act as the persons appointee or who wishes to challenge their application… That is just me hypothesising i don’t know for sure… So if no NoK just make them award of that.
  • This video on money and the MCA (also explaining that the appointeship is separate to the MCA 2005) is really good - The MCA and money – new shedinar – Mental Capacity Law and Policy
  • Lastly, in situations where a Lasting Power of Attorney for Property and Affairs or Court Appointed Deputy for Property and Affairs are acting on the persons behalf and also managing their benefits paid by the DWP the MCA will apply in those situations.

Sorry if i have misunderstood the question again but i hope the above helps.

5

Thank you. You have answered the question rightly.