Next of kin is a commonly used term in everyday language, yet despite its frequent use ‘next of kin’ only provides legal rights for a parent or guardian of a child under the age of 18 to make decisions on their behalf.
Whilst you may anticipate that your spouse, or another close relative, would have automatic access to your finances or medical records should the need arise, this simply is not the case.
Why name a next of kin?
Many services, particularly those involving healthcare, ask for details of your next of kin. You can name whoever you feel is most appropriate, however naming that person does not grant them any legal rights or responsibilities. Rather, organisations simply ask for details so that they know who you wish to be kept informed about your care and any decisions that the organisation needs to make on your behalf.
Naming someone as your next of kin in such circumstances does, therefore, have advantages. It ensures that person is kept up to date with your progress and treatment. In many circumstances, care providers will also consider your next of kin’s views when they are making any decisions about your care; as an example, they may have knowledge of specific dietary requirements or preferences which they can pass on for you.
The advantages are, however, limited and it is not enough to presume that your spouse or children will be able to take over your affairs if needed without you having taken steps to put proper legal authority in place.
All of your affairs, financial and medical, must be kept confidential during your lifetime and may only be released to certain persons, in certain circumstances, after your death.
If a solicitor holds your will, they cannot release this to your children simply because you have said they are your next of kin.
The law is designed to help everyone retain their independence for as long as possible. All the time a person has sufficient mental capacity, their decisions are their choice and theirs alone. Even if that person makes an unwise decision, no one else may step in and take that choice away from them.
Because of the way the law works, there is often a grey area during a period of time when somebody might need additional help, but they still understand and can make their own choices. For example, this could be during the early stages of dementia when the decline of mental capacity may happen very gradually.
How to ensure your next of kin does have legal rights
The only way to give your next of kin legal rights and empower them to deal with your affairs on your behalf is by appointing them under an Enduring Power of Attorney (EPA).
You can do this at any time so long as you have sufficient mental capacity. It is, therefore, advisable to do this now rather than leaving it until your health deteriorates. You can appoint any of your relatives, friends, or neighbours as your attorneys to look after your property and finances and make decisions about your financial circumstances should you become incapable of doing so yourself. The law in England & Wales allows attorneys to make decisions about medical treatment and other health care needs but there is no equivalent law here at present.
Financial problems without an EPA
Without an EPA, no one will be able to access your finances and your bank accounts would be frozen until authority is granted by the High Court. In the meantime, important outgoings could end up going unpaid.
For those who end up in this situation the High Court may appoint a Controller, however this is a time-consuming, expensive and lengthy process.
How we can help
If you want to make sure that your next of kin will be able to deal with your affairs on your behalf, the only way to do so is to prepare an EPA. Our solicitors can advise you on the procedure and draft the documents for you, to ensure that all your wishes are clear and legally binding.
For further information, please contact us on 028 82 242177 or email email@example.com
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.