Sofia Tayton, a partner and head of the Elderly and Vulnerable Clients team at law firm Lodders, explains the roles and responsibilities of a next of kin when you lack capacity.

Who is my next of kin?

There can be confusion around the phrase ‘next of kin’, with many assuming there is someone who automatically becomes your next of kin and has the legal right to make decisions for you if you cannot make them for yourself. However, this is not the case. Next of kin has no real legal definition or standing.

The only exception to this is with children under the age of 18, when a parent or legal guardian may make decisions for or on behalf of a child.

In health and social care situations, next of kin is often used to identify an emergency contact, or a close friend or relative to update about your condition or treatment. The term usually means your nearest blood relative, and most people assume it refers to their spouse or civil partner.

You can, however, give the title of ‘next of kin’ to anyone you wish. It does not have to be a relative.

Next of kin and medical care

If you attend hospital for a planned procedure, you will provide information on who staff can contact in the event of an emergency, and who should receive updates on your condition.

If you are hospitalised in an emergency and unable to provide details of who staff can contact, they will attempt to identify your next of kin.

Being identified as your next of kin does not, however, give anyone the right to make decisions about your care, or to give or refuse consent to treatment on your behalf. At the most, your next of kin will be updated on your progress and asked for their thoughts on your care.

Next of kin and financial matters

Remember, there is no legal basis for next of kin, so neither your spouse, civil partner, long term partner, nor child, have any legal right to make decisions about your property and financial affairs, even if you view them as your next of kin. No-one who you identify in this way should sign any documents for you or give any instructions about your bank accounts or investments.

Can I appoint someone to make decisions for me when I lack capacity?

There are several ways you can ensure people you trust will be able to make decisions for you if you lack capacity, and that they take your wishes and feelings into account. The options available include:

Advance decisions

If you want to refuse certain treatments or interventions then you can make an advance decision, which are sometimes also known as ‘advance directives’ and ‘living wills’. An advance decision is a decision you can make now to refuse a specific type of treatment at some time in the future.

There are formalities that apply for an advance decision to be valid and applicable. A valid and applicable advance decision to refuse treatment has the same legal effect as if you were making the decision yourself at the time it needs to be made.

Lasting powers of attorney (LPAs)

Lasting powers of attorney (LPAs) are documents that allow you to appoint a person or people who you trust to make decisions for you. LPAs can be created for:

• financial decisions
• health and welfare decisions

Once the LPA forms have been completed, signed by all parties, and registered with the Office of the Public Guardian, you have attorneys in place who are legally authorised to make certain decisions for you.

Attorneys who act under LPAs have several duties and responsibilities, as well as legal rights. They must always act in your best interests and support you to make as many of your own decisions as you can. The Office of the Public Guardian supervises attorneys and can take action if there are concerns.

Court of Protection

If a person lacks capacity and has not made an LPA, it may be necessary to ask the Court of Protection to appoint a Deputy to make decisions for them.

Being next of kin does not automatically mean you would be the person the Court appoints as Deputy. A Deputy can be a family member but could also be a professional, such as a solicitor or accountant, or even a local authority.

What happens if I die without a will?

If you die without a valid will in place, then next of kin can take on a different meaning. This is because the intestacy rules which apply here follow your bloodline to identify who is able to deal with your estate (money, property and possessions) and how it should be distributed.

Therefore, it is possible that the person you name on your hospital records as next of kin, for example, and the person who is entitled to deal with your estate if you have no will (your statutory next of kin) will be completely different people.

About the author

Sofia Tayton is a specialist in the preparation and registration of Enduring and Lasting Powers of Attorney at Lodders, regularly advising clients on these as well as Court of Protection applications, care funding, wills, and estate planning. She manages the financial affairs of people unable to do this for themselves, as well as advises on care funding, reclaiming care fees, and the appointment of Deputies.

See also

What you need to know about lasting power of attorney (LPA)

A guide to the Court of Protection

Everything you need to know about testamentary capacity

What are the intestacy rules in England and Wales?

Image: Getty Images

Publication date: 16 February 2022

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.