Richard Ostle, Private Client Partner, writes about the legal status of a ‘next of kin’ and your alternatives.
Who is your ‘next of kin’
Although the phrase ‘next of kin’ is commonly understood to mean your spouse, nearest blood relative or someone you nominate to be informed about your medical condition or treatment, there is in fact no legal definition of next of kin in English law, except in a limited number of situations involving children under the age of 18.
Despite the widely held presumption that a person’s next of kin would have automatic legal rights, powers or responsibilities to deal with their relative’s affairs during lifetime or after death, this is not the case.
It is therefore important to understand what options are available to give appropriate legal powers and rights to the person that you consider to be your next of kin.
Making decisions and dealing with your affairs in your lifetime
If you want to ensure that your next of kin has the power to make decisions on your behalf or deal with your affairs if you need support with decision-making in the future, you should consider appointing them as your attorney under a Lasting Power of Attorney (LPA).
There are two types of LPA, one dealing with health and welfare and another with property and financial affairs.
The Health and Welfare LPA allows your attorney to make decisions on your behalf about your personal healthcare and welfare if you are no longer able to make these decisions yourself. This could include, for example, liaising with doctors about any necessary medical treatment, discussing any ongoing care needs with social services and making decisions as to where you should live.
The Property and Financial Affairs LPA allows your attorney to make decisions on your behalf regarding your property and financial affairs. This could include managing your bank accounts, paying your bills or selling property on your behalf.
You can grant an LPA at any time while you have capacity and you can choose and appoint more than one attorney. Your attorney(s) can be a family member, friend or a professional.
If you lose capacity and you do not have an LPA in place, it is possible for the Court of Protection to appoint someone as your deputy instead. However this is a much lengthier and more involved process and you cannot be sure that the person the court chooses would necessarily be the person that you would choose to make decisions for you. Deputyships also tend to be limited to the financial side, with only a relatively small number of deputyship orders for health and welfare orders being successfully granted.
More information about LPAs can be found in our Lasting Powers of Attorney Briefing Note
Dealing with your affairs after your death
As with lifetime affairs, your next of kin does not have the automatic power to take charge of matters in the event of your death.
If you have a Will in place you have the power to choose your executors, who are appointed in the Will as the persons who will be responsible for dealing with all legal affairs after your death. This includes arranging the funeral, collecting in your assets and dealing with your personal effects. You can appoint whoever you want to be your executors, whether or not they are a close blood relative.
If, however, you die without a valid Will in place your estate is then dealt with in accordance with the rules of intestacy. In an intestacy nobody has an automatic right to deal with your affairs after your death – they instead have to apply to the court for authority to take charge. In such cases there is an order of priority as to who can apply to deal with your estate, which person is known as an administrator, rather than your executor. In general only a person who is entitled to benefit from your estate can apply, and although the person entitled would normally be your closest living relative, this can create uncertainty and delay – especially if there are several next of kin. In many cases the automatic order of priority will not be appropriate, for example an unmarried partner or close friend would not be entitled to apply – even if you consider them to be your next of kin.
More information about Wills can be found in our Wills Briefing Note