Many people assume that being named as someone’s next of kin gives them the right to make decisions if that person becomes seriously ill or loses mental capacity. It is an understandable belief: hospitals, care homes and emergency services often ask for a next-of-kin contact. However, in England and Wales, the term has no general legal authority while a person is alive.
A next of kin is mainly a point of contact. They may be kept informed and consulted, but they do not automatically have the right to consent to treatment, manage money, pay bills or deal with property. Someone appointed under a Lasting Power of Attorney (LPA), by contrast, has legal authority to act within the powers set out in that document.
Choosing a next of kin
You do not usually need documents to prove who your next of kin is. If you can communicate, healthcare staff will normally record the person you choose. That person does not have to be a relative: it could be a spouse, partner, adult child, friend, neighbour or anyone else you trust.
Difficulties can arise if you cannot communicate and staff have to identify the person closest to you. This is particularly relevant for unmarried couples, blended families, people who are estranged from relatives, or those who would prefer a close friend to be contacted.
For example, someone may have lived with their partner for many years but never married. After an accident, a hospital may initially contact a blood relative instead, even though the partner knows the person’s wishes and medical history. Telling your family and healthcare providers whom you want contacted—and carrying an emergency contact card—can help, although it does not give that person legal powers.
What happens if you cannot make a decision?
If you lose mental capacity, your next of kin does not automatically become the decision-maker. Under the Mental Capacity Act 2005, any decision made for you must be in your best interests and must be the least restrictive option. Family and friends will often be consulted because they may understand your wishes, values and beliefs, but consultation is not the same as legal authority.
If you want a trusted person to make decisions for you, the usual way to give them that authority in advance is by making an LPA while you have mental capacity.
The two types of Lasting Power of Attorney
A Property and Financial Affairs LPA can cover matters such as bank accounts, bills, pensions, benefits, tax, investments and property. If the LPA allows it and you give permission, your attorney may be able to help while you still have capacity. Otherwise, they can act if you no longer have capacity to make the particular decision.
A Health and Welfare LPA can cover medical treatment, care arrangements, where you live and day-to-day matters. It can only be used when you cannot make the relevant decision yourself. You can also choose whether your attorney may make decisions about life-sustaining treatment.
Making an LPA does not mean losing control
An LPA is a safeguard, not a handover of your independence. As long as you can make a decision, you remain in control of it. Your attorney must follow the law, act in your best interests and stay within the authority you have given them.
Making an LPA also lets you choose who will act, appoint more than one attorney if appropriate, name replacements and record instructions or preferences. In that sense, it helps preserve your voice if you cannot speak for yourself later.
What if there is no LPA?
Once a person no longer has the required mental capacity, it is too late for them to make an LPA. Someone may then need to apply to the Court of Protection to become a deputy for property and financial matters, or ask the court to decide a particular welfare issue.
Deputyship can involve court forms, evidence of incapacity, fees, supervision and annual reporting. The court decides who should be appointed and what they may do. Where relatives disagree, the process can become more difficult and the court may consider whether an independent professional is more suitable.
A practical step for peace of mind
It is sensible to record an emergency contact, but that is not a substitute for legal planning. If you want someone you trust to deal with your finances or make health and care decisions when you cannot, consider putting the appropriate LPAs in place while you are able to do so.
How we can help
Every family is different. Our private client team can explain the options in plain language, help you choose suitable attorneys and prepare LPAs that reflect your wishes. Taking advice now can provide reassurance and reduce uncertainty for the people closest to you.
