Written by Alanna White
I am often approached by clients asking me to clarify the difference between their role as a next of kin and an attorney. Unfortunately, the title of next of kin carries several misconceptions and can mislead families into believing that they will have a ‘say’ if their loved one becomes unwell or even incapacitated.
In this article, I would like to dispel some of the myths and answer the most common questions. Here are some of the things I am most frequently asked.
“What documents, if any, do I need to carry with me stating who my next of kin is?”
I would say that you do not usually need any paperwork for this because when you are admitted, the hospital will typically just ask you to name your next of kin. But if you are not able to speak for yourself (for example, if you are unconscious), the medical staff will try to figure out who the closest person to you is.
That is where things can get a bit challenging and tricky. If your situation is not the “traditional” one because your closest person is a friend rather than a spouse or a child, they might not get it right, and the person you trust most could be left out of updates about your condition. This could also create friction in the family, as two of your children might consider themselves to be your next of kin. Sadly, this situation can become difficult for ‘blended’ families when a child is not happy with the appointment of a step-parent.
A simple way around this, as suggested by the Royal Free Hospital in London, is to carry a next of kin card that clearly states who your chosen person is. It is a small step that can make a big difference when it really matters and avoid unnecessarily stressful situations.
“Do I need to choose a blood relative if I am not married?”
Not at all! There is no legal definition of a next of kin, and whether a person is married or not, they can nominate whomever they wish to.
In reality, hospitals tend to default to a spouse or close family member, but this is definitely not set in stone. As long as the person you nominate is happy to undertake this role, you can choose and nominate whoever you trust, whether this is your spouse, a child, partner, a friend or a neighbour.
“I have nominated someone. I can rest assured that if I am very unwell, lose mental capacity, or am unconscious, my trusted next of kin will be able to make decisions on my behalf and manage my affairs.”
Unfortunately, this is not true.
Even if you nominate someone as your next of kin, it does not automatically give them any legal rights or responsibilities. In practice, it simply helps medical teams know who to keep informed about your condition and care.
If you want someone to be able to step in and make decisions or manage things on your behalf when you are unwell or if life becomes overwhelming, a more formal arrangement is needed. This is where a Lasting Power of Attorney comes in. By appointing a person you trust and can rely on as an attorney, you give them legal authority to make important decisions relating to your finances or health if you are unable to make them yourself.
Many of my clients are concerned about setting up a Lasting Power of Attorney as they fear that they will give up all control. This is definitely not the case. I like to compare a Lasting Power of Attorney with an insurance policy. You are simply planning for a ‘rainy day’ if it ever comes.
“I am still not convinced I should set up a Lasting Power of Attorney. Surely my next of kin will be able to set these up easily if I lose the ability to do it myself or I become unable to make my own decisions.”
Unfortunately, this is also not true.
What is true is that a next of kin or any member of your family, or even a friend, can apply to become a deputy if you lose the ability to manage your own affairs, but the process is not always straightforward. It involves applying to the Court of Protection, which can take time, is costly and may feel quite involved. If more than one person feels they are right for this appointment and applies, it can sometimes lead to delays or even disputes, adding further cost and stress at an already difficult time.
In some situations, where there is disagreement, the court may appoint a professional deputy, and this will be someone who does not have a personal relationship with you. This will also mean ongoing legal costs, which can quickly add up.
Because of this, it’s often much kinder on both you and your family to plan ahead by putting a Lasting Power of Attorney in place and choosing someone you trust to act for you.
If you have any concerns about how a Lasting Power of Attorney might affect your day-to-day life, you are very welcome to get in touch. We are here to talk things through and help you feel confident about your choices.
