Nearest relative

Explains what a nearest relative is, including what powers and rights they have and how you can change your nearest relative. Applies to England and Wales.

Changing my nearest relative

Can my nearest relative give their powers to someone else?

Yes – if your nearest relative doesn’t want to be your nearest relative:

  • They can give their powers to someone else, as long as that person agrees. To do this, the nearest relative can write a letter to tell the hospital that they are choosing someone else to act in that role.
  • If, at any time, your original nearest relative changes their mind, they can take back their powers in writing.

Example letter for nearest relative to give their powers to someone else

There isn't a specific form to use but here is an example letter (Word version or PDF version).

Can I change my nearest relative?

Yes – you can apply for someone else to be your nearest relative if you are a patient – this is called ‘displacement’. If you are detained under the Mental Health Act, you will need a litigation friend to do this. The procedure can be quite complicated and potentially expensive so it is important to get specialist legal advice.

  • You can suggest one or more persons who might be suitable as your nearest relative. Alternatively, it may be an approved mental health professional or someone from the local social services who is appointed as your nearest relative.
  • You can change your nearest relative on a number of different grounds (set out in section 29 of the Mental Health Act):

Grounds for changing your nearest relative

You can change your nearest relative if:

  • they cannot act because of health reasons
  • they have unreasonably objected to a section 3 or guardianship application
  • they have tried to discharge you without considering all of the circumstances
  • they are unsuitable to act
  • you don’t have a nearest relative from the list
  • it is not practicable to identify them
  • How long the displacement lasts depends on the reason the court order was made. Often the court order will give a date that the court order ends or it ends automatically when you are discharged from your section. It is important to get specialist legal advice for your situation.
  • You could be made to pay the other parties’ costs if your case is unsuccessful. So if you want to change your nearest relative, it is very important to speak to your approved mental health professional and get specialist legal advice.

How do I change my nearest relative?

N208 Form Flowchart

Fill in the N208 form

Give details about your situation

  • There are strict rules about what information you need to give. These are called the Part 8 Civil Procedure Rules. They are very specialised and it is always important to get legal advice to make sure that they are followed.
  • You will need to include information like: the details of your nearest relative, why you want to displace them, who you would like to replace your current nearest relative, the law that lets you make this claim and what role your representative has (if, for example, you have a solicitor or litigation friend).
  • It is always useful to have evidence to support your case. Depending on the facts, this could include reports from your family members, medical practitioner, probation officer, and/or approved mental health professional.

Pay the application fee

  • You will need to pay a fee when you submit the application.
  • You may be able to a discount or remission depending on your income. Find out more about how much you will have to pay and the fee remission scheme on the Gov.uk website.

Apply to your nearest county court

  • You should apply to the county court in which you live in if you want to make an application. However, if you want to change a court order, you need to apply to the same court that issued it.
  • Find your nearest county court by using the Gov.uk court tribunal finder and putting in your postcode. If you select all areas of law, the courts nearby will be listed closest first and you can find the county court.

What happens once I have submitted the application?

  • Your nearest relative will be informed. In most cases your nearest relative will be told if an application has been made to displace them. However, there are some occasions where it is not appropriate. This is called an ‘ex parte’ hearing.
  • If your nearest relative disagrees with the displacement, they can challenge the application and submit their own evidence. If your nearest relative is not capable of acting because they have a mental disorder, they may have a litigation friend acting for them.
  • Your hearing may take place in a court, or somewhere else. It is important that the judge has all of the information that they need to make a decision. This may mean that the judge would like to speak to you. This could be in court or somewhere else. It could be on your own or with other people depending on the situation. If you are detained, the hospital should help you go to court if you want to go.
  • Your case will be heard by a circuit judge. The circuit judge will be referred to as "His/Her Honour Judge [surname]". The hearing will take place in private so that the public cannot attend.
  • Your nearest relative will continue to be your nearest relative while the hearing is ongoing, in most cases. However, the court can make an ‘interim’ order which means that someone else will act as your nearest relative until a final decision can be made.

Can I get legal aid?

In some circumstances you may be able to get legal aid to help you pay for your legal costs. You should contact a solicitor specialising in mental health to discuss your case. See Useful contacts for details of how to find a solicitor.

Some insurance policies have legal expenses insurance which could cover your particular case. Check your home or car insurance to see if it does.

Can the displacement be changed once I have been to court?

Yes – you can go back to the court to change or end the court order. You will need to make an application to the court that made the original court order.

You should get specialist legal advice in relation to your case.

 


This information was published in August 2018. We will revise it in 2020.


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