s 26 Mental Health Act 1983 sets out a hierarchy of relationships so that those involved in making a guardianship or admission application can identify the person with the statutory rights of the nearest relative.
There are special rules whereby more distant relatives, who have cared for the person recently, or even non-relatives, who have had shared accommodation over a long period, can be boosted to the top of the list, over others appearing there.
‘Relatives’ are the person’s
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
(g) uncle or aunt;
(h) nephew or niece.
Half brothers and sisters etc are treated as if they were full relatives; and illegitimate persons are treated as legitimate and therefore count as the son or daughter of a mother, in all cases, and of a father too, if the father had parental responsibility for the son or daughter.
The “nearest relative” is the person first in the list, with the elder of children or other relatives of the same status as each other, coming first.
However, where the patient concerned, ordinarily resides with, or is cared for by one or more of his relatives, his nearest relative is that relative, regardless of where they come in the list. The same goes for people who are in hospital when the issue arises; if s/he last ordinarily resided with, or was cared for by one or more of his relatives, then the ‘carer relative’ goes to the top of the list.
Where someone would be the nearest relative of a patient but is not resident in the United Kingdom, the Channel Islands or the Isle of Man, or is the husband or wife of the patient (or the co-habitee so long as they had been living together for more than 6 months), but is permanently separated from the patient, or is a person other than the husband, wife, father or mother of the patient, and is for the time being under 18 years of age, then the nearest relative is worked out by ignoring that particular person’s existence.
A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, (ie a long term friend, or same sex partner) shall be treated for the purposes of this Part of this Act as if he were a relative, but he or she still comes last on the list.