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Being next of kin does not give you legal rights as a sibling

It is often assumed that when a child with a learning disability and/or autism becomes an adult, that siblings and parents can continue to make decisions for them as they always have. You and your family might think of yourselves as next of kin, but the law doesn’t recognise that next of kin have the right to make decisions for someone else – even if that person has signifiant learning disability.

What is the legal meaning of mental capacity?

Mental capacity refers to a person’s ability to make decisions. Whether someone lacks capacity is determined on a decision-by-decision basis. For example, your disabled brother or sister may have the capacity to decide what to eat, but may not have the capacity to decide whether to have an operation or not.

There are four things that your brother or sister must be able to do in order to have the mental capacity to make a decision.

  1. Understand information about a particular decision.
  2. Remember that information long enough to be able to make the decision.
  3. Weigh up the information available to make the decision.
  4. Communicate the decision.

It is not based on the type of disability that your brother or sister has e.g. some people with autism will have the capacity to make decisions about finance, other people with autism will not.

My autistic brother is non-verbal – when he goes into hospital, who can consent to treatment on his behalf?

When my parents die, am I legally responsible for making decisions for my sister who has Down syndrome?

My brother has moderate learning disabilities and says ‘yes’ to everything – but he often doesn’t know what he’s saying ‘yes’ to! This really worries me.

Who can make decisions for your disabled brother or sister?

If your brother or sister is unable to make a decision for themselves, siblings, parents, other family members, friends and professionals can act in their best interests. This means involving your disabled brother or sister as far as possible and taking into account their wishes, feelings and values. It is also important to know that you do not have any legal duties to make decisions on behalf of your sister. It is your choice whether or not to become involved.

Some decisions require special legal permissions

Sometimes you might need to have special permission to make certain decisions for your brother or sister, for example using their bank account or consenting to a medical procedure. Different special permissions are required in the different UK countries.

Read more about UK mental capacity laws and decision-making in our guide for adult siblings of people with a life-long learning disability and/or autism