‘Next of Kin’ Doesn’t Mean you Can Make Decisions: What Really Happens If a Loved One Loses Capacity

Many people think that being named as someone’s ‘next of kin’ gives them legal rights, but that is not the case. Under UK law, ‘next of kin’ has no formal legal meaning.

When someone goes into hospital, they are often asked to name a ‘next of kin’. This person is simply the main point of contact, so the hospital knows who to update if there is an emergency. It can be anyone the patient chooses, including a friend. However, being named as ‘next of kin’ does not give that person the legal right to make medical or financial decisions.

For example, a ‘next of kin’ cannot agree to or refuse life-sustaining treatment for someone else. They also cannot access that person’s bank accounts or deal with their estate after death just because they were named as next of kin.

To make decisions about someone’s care and medical treatment, there must be a valid Lasting Power of Attorney for Health and Welfare appointing one or more attorneys. If the document allows it, those attorneys can also agree to or refuse life-sustaining treatment. If there is no Health and Welfare Lasting Power of Attorney, doctors will make these decisions in the person’s best interests.

To manage someone’s money or property, there must be a valid Lasting Power of Attorney for Property and Financial Affairs. If it gives that authority, the appointed attorney or attorneys can deal with bank accounts and other financial matters on that person’s behalf.

If there is no valid Lasting Power of Attorney, an application may need to be made to the Court of Protection to appoint a Deputy. A Deputy can be given authority to manage financial matters and make decisions about health and welfare, although the latter is less common. This process can take 8 to 12 months and can be expensive.

If the person dies, their ‘next of kin’ does not automatically deal with their estate. That responsibility usually falls to the executors named in the Will. If there is no valid Will, the intestacy rules decide who can inherit and who can administer the estate.

If you want peace of mind that someone you trust can make decisions about your finances, health, and care if you cannot do so yourself, it is important to put Lasting Powers of Attorney in place.

It is also important to have a valid Will, so your estate passes to the people you choose and is dealt with by the people you trust. Ideally, a Will should be prepared with professional advice to make sure it is valid.