29 July 2021

When is ‘next of kin’ not enough?

By Jennifer Taylor, Solicitor, Hayes + Storr.

Whilst you may anticipate that your spouse, children, or other close relatives can access your finances or have a say in your medical care should you become mentally and/or physically incapacitated, this is not necessarily the case.

Next of kin

Many services will ask for details of your next of kin. There are no clear legal rules as to who you can name as your next of kin, and they do not necessarily have to be a blood relative.
Naming a person as your next of kin does not grant them any legal rights or responsibilities. Rather, organisations ask for their details, so they know who to keep informed about your care.

Legal position

All of your affairs, financial and medical, must be kept confidential and may only be released to certain persons, in certain circumstances. The law is designed to help everyone retain their independence for as long as possible. However, later in life, you might need additional help. For example, during the early stages of dementia when the decline of mental capacity happens gradually but you can still understand and make your own choices.

How to ensure your next of kin does have legal rights

One way to give a person legal rights and empower them to deal with your affairs during your lifetime is by appointing them under a Lasting Power of Attorney (LPA). You can arrange LPAs at any time, so long as you have mental capacity. LPAs should therefore be created in advance rather than leaving it until your health deteriorates.

There are two types of LPA:

  • Health and welfare, which authorises your attorneys to make decisions about your medical treatment and health care, and;
  • Property and financial affairs, which authorises your attorneys to make decisions about your property and finances.

What happens if you don’t have an LPA and lose mental capacity?

If you lose mental capacity, and you have not made an LPA, then then someone will need to apply to the Court of Protection to become your deputy. There are several reasons why LPAs are a better option than a deputyship:

  • An LPA allows a person to choose who they want to make decisions for them, but a person has no control over who is appointed as their deputy.
  • A deputyship is more expensive.
  • Deputyships for health and welfare are rarely ordered by the court, whereas an attorney can be appointed under an LPA to make decisions with respect to a person’s health and welfare.
  • It can take a long time to apply for a deputyship in comparison to making an LPA.

Without valid documents in place, no person, including your next of kin, can make these decisions for you during your lifetime.

For further information, please call Jennifer Taylor on 01553 778900 or email: Jennifer.taylor@hayes-storr.com.

Learn more about making a Lasting Power of Attorney here.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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