It is always difficult when a relative dies or no longer has the mental capacity to make decisions for themselves. If you are named their next of kin, it is extremely helpful to know what is a next of kin exactly, and whether it gives you any legal rights.
Many people assume that the next of kin meaning is that you automatically have the right to make decisions and deal with the affairs of your loved one. However, this is not the case.
What Is Next Of Kin?
Although there is no legal definition for what is ‘next of kin’, it is quite often the phrase which is used when discussions are taking place with healthcare professionals about a person’s medical treatment, if they have lost mental capacity to make decisions themselves.
‘Next of kin’ is also used when a person dies without leaving a will and discussions take place as to who is entitled to deal with their estate and benefit from it.
When a person is alive, and they have lost mental capacity to deal with their finances and/or make decisions about their health and welfare, it’s worth finding out if they have made a power of attorney appointment in the past.
Whilst they had mental capacity, they may have made a power of attorney appointing a person they would like to deal with their finances or make decisions about their health and welfare, if they were mentally incapable of doing so themselves. Those appointed are known as attorneys, but they may not necessarily be the person’s nearest relatives.
When a person dies, who is entitled to deal with the estate and benefit from it depends on whether the person made a will. If they did, it will appoint their executors (the people entitled to deal with the estate) and the beneficiaries. Again, this may not necessarily be the deceased’s nearest relatives, or next of kin.
If, however, a person dies without leaving a will, then who is entitled to deal with the estate and benefit from it is determined by what are known as the intestacy rules. These look at the deceased’s nearest relatives – for instance, whether there is a surviving spouse or any children. It is important to note that these rules do not include cohabitees of the deceased, no matter how long the duration of the relationship.
Who Can Be Next of Kin?
As part of discussions with healthcare professionals, the patient may be asked for details of their next of kin. This could be their spouse or civil partner, children or other relatives, or even friends.
By finding out who is next of kin, the healthcare professionals know who they can keep informed of the patient’s condition, treatment, and prognosis.
It does not mean, however, that the person nominated as the next of kin has the legal authority to make decisions about the patient’s medical treatment if they do not have the mental capacity to make those decisions themselves, or to deal with the patient’s finances.
What Are The Next of Kin’s Legal Rights?
Given that the term ‘next of kin’ has no legal standing, then whoever has been nominated as ‘next of kin’ does not have legal authority to deal with matters on behalf of the patient. The only exceptions are children under 18, when a parent or legal guardian may make decisions for or on behalf of a child.
What Rights Does The Next Of Kin Have In the UK vs US?
Something that can be a source of confusion is the legal difference between what is next of kin in the UK versus other countries. For instance, while in the UK next of kin is not an official legal category, in the US this title gives the people nominated agency to make decisions in medical settings.
In some instances, the next of kin meaning in other countries might even extend to legal authority in handling your estate and assets. In the UK it would only be necessary to consider the deceased’s nearest relatives in the event of them dying without a will.
What Is The Next Of Kin Nomination Procedure?
Even though the title ‘next of kin’ doesn’t automatically bring any legal rights, it’s not something a person would automatically assume if you haven’t nominated them – so it’s best to make your choice explicit, if you can.
In the event of an emergency where you cannot provide the information for any reason, medical facilities would normally follow the default next of kin priority order, starting with a parent or a sibling.
Some people also choose to add the word ‘ICE’ next to a contact in their phone to inform anyone with the access of who to contact ‘in case of emergency’.
Of course, there are scenarios where you might have a strained relationship with your family, and you might want to nominate someone else (such as a friend or a partner) to be your next of kin. That’s why it’s good to clearly state who is next of kin for you where possible.
However, it’s also worth noting that next of kin is not a legally binding nomination; so, if you want to officially entrust your affairs to a specific individual, you should put in place other types of legal paperwork.
Read more: Do I Need to Make a Will? Why Bother? How to Stop Probate
How To Give Legal Rights To Your Next of Kin
If you wish for the person who you have nominated as your next of kin to have the legal authority to make decisions on your behalf about your health and welfare (if you are mentally incapable of doing so) or deal with your finances, you need to appoint them as your attorney under documents known as Lasting Powers of Attorney (LPAs).
Find out more about LPAs.
A LPA means that an individual of your choosing has been appointed to make decisions on your behalf, if there comes a time you cannot. There are two main types of LPAs:
- Property and Financial Affairs
- Health and Welfare
How To Give Your Next Of Kin Lasting Power Of Attorney
The process of appointing your next of kin as an Attorney is relatively straightforward. An application can be made on your behalf by an experienced solicitor like our team here at Howells.
Having an LPA in place is a great way to plan your future. It gives you the opportunity to select the person or persons who you believe would be most suited to carrying out your wishes and ensuring your future affairs are looked after.
If you have not made LPAs, and you lose mental capacity, an application would need to be made to the Court of Protection for a Deputyship Order.
Under the Deputyship Order whoever the court has appointed to act as your deputy has authority to make decisions on your behalf about your health and welfare and deal with your finances.
The person appointed as the deputy may not necessarily be the person who the patient would have appointed as attorney if they’d had the mental capacity to make LPAs, and so may not necessarily be whoever they have nominated as their ‘next of kin’. The deputy may end up being a professional from the court panel of professional deputies.
The process of applying for a deputyship can be time-consuming and costly for those closest to you. The much better option is for you to make LPAs whilst you are still fit and well, appointing whoever you would like to act as your attorneys.
Next Of Kin Rights When There’s No Will
Simply because a person has been nominated as ‘next of kin’ does not mean they have legal authority to deal with the person’s estate and benefit from it upon the patient’s death. If a person has left a will, this will be determined by the terms of the will.
If, however, the person dies without leaving a will, then who is entitled to deal with the estate and benefit from it will be determined by the intestacy rules. These rules look at the closest surviving relatives of the deceased, and so could in fact end up being those who had been nominated as ‘next of kin’ (e.g. the surviving spouse and children).
These people are then entitled to act as administrators of the estate and apply for what is known as a Grant of Letters of Administration, which enables them to deal with the deceased’s estate.
A problem can sometimes arise where you have several people who are all equally entitled to act as administrators of the estate (say children of the deceased) and a decision cannot be made as to how the estate is administered. If you find yourself in this situation, then our Guide to Contentious Wills and Probate will hopefully provide you with some guidance.
Who Is The Next Of Kin In Event Of A Death?
If a person dies without leaving a will, the intestacy rules set out a strict order of priority for the administrators and beneficiaries of the estate. These people may not necessarily have been nominated as the ‘next of kin’. For instance, where there is a surviving spouse and no children, the spouse is entitled. Where there is a surviving spouse and children, who is entitled will depend on the value of the estate.
What Is Proof For Next Of Kin?
Where there is an intestacy, and professional assistance is needed to determine who is entitled to deal with the estate and benefit from it, the adviser will request copies of supporting documents to evidence the relationship of the proposed administrator/beneficiary to the deceased, such as marriage and birth certificates.
Legal Assistance For Next of Kin
Not sure what is your next of kin entitlement? Talk to an experienced solicitor today for professional advice specific to your situation.
