It is always difficult when a relative dies. You may be the deceased’s next of kin, but it is extremely helpful to know what if any legal rights you have.
Many people assume that being the next of kin means 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 are the Next of Kin’s legal rights?
As far as the law is concerned next of kin means nothing with the exception of children aged under 18. The next of kin of a child under 18 may be legally entitled to make decisions for or on behalf of the child.
The term usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife.
Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends. It is also possible to name more than one person as your next of kin. This is a title that is primarily used in order for emergency services to know who to keep informed about an individual’s condition and treatment.
This means that you have no legal rights as a result of this title. This can create difficulties if you haven’t put additional measures in place to manage your relative or loved one’s affairs. If you do not have any legal rights, you cannot make decisions on their behalf.
How to Give Legal Rights to Next of Kin
If you wish for your next of kin to have the power to make decisions for you and be able to manage your financial affairs during your lifetime then you need to appoint them as your Attorney(s) under a Lasting Power of Attorney (LPAs). You can find out more about LPAs here.
The LPA means that an individual of your choosing has been appointed to make decisions on your behalf. There are two main types of LPA’s and they are:
- Property and Financial Affairs; and
- Health and Welfare.
The process of being appointed is relatively straightforward. An application can be made on your behalf by an experienced solicitor. 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 appointed an Attorney(s) then your next of kin could apply to the Court of Protection to gain rights. An application can only be made if you have lost mental capacity. The Court can appoint a Deputy if you lack mental capacity to make decisions for yourself. The Deputy is then authorised by the Court of Protection to make decisions on your behalf.
There are two types of Deputy:
- Property and financial affairs
- Personal welfare (eg. medical treatments and health care). A Deputy is only appointed if there is a proven need for someone to be appointed e.g. urgent medical decision(s) need to be made.
You can apply to be appointed as both types of Deputy. It is quite difficult to make a successful application to be appointed as a Deputy for Health and Welfare.
Dealing with an Estate without a Will
The next of kin may have a legal entitlement to deal with an estate where there is no will. However, in order to have the legal right they would have to apply to be appointed as an Administrator of the estate. This involves applying for a Grant of Letters of Administration. Once appointed as an Administrator you gain the legal rights to access the person’s bank account and other assets.
When there are several next of kin who are all entitled it may create some difficulty and contention if there is no agreement. If this sounds like your situation, then take a minute to view our Guide to Contentious Wills and Probate.
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