Suddenly incapacitated relative. Who can act on their behalf?

A relative was recently involved in a car accident leaving them with a severe brain injury and only time will tell how much he will recover, currently they can't speak or act for themselves.

His adult children and partner have been instructing and paying for his care and attempting to contact VHI on his behalf. VHI refuse to speak with them or entertain claims as they are not listed on his policy and they have requested my assistance. I'm not sure what I can do but I'll contact them tomorrow to remove the emotion from the discussion.

In the meantime, I was wondering if anyone here could advise how this should work. They have been paying other utility bills too so there's a lot to be sorted out.

An added complication is an ex-wife who hasn't been seen in 20 years but I'm assuming has legal rights/powers here? The partner of 15 years was never formalised and it appears he had and paid most shared bills etc in his name.

Assuming no Enduring power of attorney, they may need to apply to court to get a decision making representative order, which would appoint one or more of them as his decision making representative. Once they are his DMR they can make legal and personal care decisions on his behalf, including certain healthcare decisions, but not decisions about life sustaining treatments. You will find information on the decision support service website.

tnegun said:

ex-wife who hasn't been seen in 20 years but I'm assuming has legal rights/powers here

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Assuming they were divorced / JS then no, spouse has no authority here.

You'll need to get a rep legally appointed; best to start the ball rolling.

VHI are not being very helpful are they? Try sending in a consultants letter confirming their insureds condition & in your covering letter ask them to settle directly with hospital. It might not work, but you have established a document trail.

Some resources that may be of use in this context:

Thanks for the responses there was no divorce but a legal separation if it carries any weight?

tnegun said:

Thanks for the responses there was no divorce but a legal separation if it carries any weight?

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It depends; was that a separation agreement or a Judicial Separation? Either way, try and see if you can get the associated paperwork. You'll need all relevant documentation.

I spoke to VHI this am and have a way forward I think. I had to do a role play that it was me in the situation but got good information from them. We've located the paperwork and spoken to the original solicitor who believes that the ex-wife is legally the next of kin. Would this mean that applying for a DMR isn't possible?

tnegun said:

applying for a DMR isn't possible

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No necessarily. Can Solicitor make contact with former spouse & start from there?

It's unlikely but the family would prefer every other avenue exhausted first. I've reached out to a solicitor and am awaiting their call back. Thanks everyone for your input and assistance.

'Next of kin' is meaningless. Even if they were married still, she would not have legal authority to make decisions in this situation. Only a DMRO or an EPA gives legal authority to make decisions on behalf of a person without capacity. sometimes hospitals/nursing homes ask families to fill in forms asking who next of kin are but in reality it is not a legal position

MHoran379 said:

'Next of kin' is meaningless.

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Wow, I never realised that and assumed that it was a legal concept.

https://decisionsupportservice.ie/news-events/myth-next-kin

Looks like I probably wasn't alone...


Edit: don't know why Askaboutmoney/XenForo seems to have problems with automatically creating links from URLs sometimes lately. I've noticed this a few times lately.

This is correct that 'Next of kin' does not confer any legal authority.

However the fact of this person being married & then separated is relevant to any application; and OP would be well advised to ensure they have all documentation.