The nearest relative (defined in statute according to a list of relatives in descending order) is entitled to object to an authority’s giving itself powers of a guardian over their relative, in the first place. The guardianship application itself requires that the nearest relative, or apparent nearest relative is informed of the proposal, so that they are not prevented from using their power of objection.
A nearest relative’s objection is fatal to the progressing of an application. However, since Parliament recognises that this would potentially make people’s nearest relatives their most powerful abusers, there is power to displace the nearest relative through the use of County Court proceedings, in s29 Mental Health Act.
Once the nearest relative has been displaced, he or she has no power to object any longer to the regime being instigated in respect of the relative, until he or she successfully appeals to the Court of Appeal (see Re F), or the order displacing his or her status is discharged or varied.
The relevant grounds for displacing the nearest relative in such circumstances are that (see s29)
the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or
the nearest relative has exercised his power to discharge the patient from hospital or guardianship without due regard to the welfare of the patient or the interests of the public, or is likely to do so.(s29)
Also, the nearest relative has power to discharge the patient from guardianship by ordering the discharge in writing – see s23 Mental Health Act 1983. The constraint against this is that the likelihood of the exercise of this power, by the Nearest Relative without due regard for the welfare of the patient, or the public, is a ground for displacement proceedings under the s29 procedure mentioned above.