A next of kin has no legal status in Britain to make decisions on behalf of another, whether disabled or deceased. Yet how often don’t we hear people saying ‘So-and-so is my next of kin. They’ll take of my affairs when I am gone.’ However, the truth is your next of kin is not de facto your custodian however you may see things. Although they could take care of your affairs if you empower them in a separate document.
Who Are Next of Kin in the Public Mind?
The legal definition of a next of kin is the closest living relative by bloodline. This is the basis for the English laws of succession whereby a deceased’s estate is shared if they do not leave a will. But in the public mind the definition is often broader, and could include:
Your legally married partner
The other person in a relationship
A relative or trusted friend
However, these persons generally have no legal authority to make decisions for you, if you can no longer make them yourself. There are however two exceptions under English law:
1… A competent court may declare a person unable to manage their own affairs and appoint a custodian.
2… Children under 18 are legally unable to manage their affairs, and their parents or guardians are their custodians.
A Next of Kin Is Not De Facto Your Custodian If You Are Ill
Medical providers regularly ask patients to nominate a next of kin when admitting them. However, this does not make that next of kin your de facto custodian when it comes to making critical care decisions. The provider merely needs a contact person they make ask for advice.
Much the same applies if you enter hospital for a planned or emergency procedure. The reception staff will request details of a next of kin they can contact. However, once again that person will have no authority to influence your treatment, unless they authorise you in a separate document.
Do They Have No Control Over My Financial Affairs Either?
This is unfortunately also the case unless you do something about it beforehand. If your partner or friend tells your bank you are comatose after an accident, they will freeze your bank account full stop. Once again, your friend or partner could apply for authority from a competent court. However, the law does take its time.
How to Make Your Next of Kin Your De Facto Custodian
It may therefore make sense to empower another to manage your affairs, before you cannot cope with them yourself. This future custodian could be your married partner, solicitor, trusted advisor, or family or friend. However, you do need to do one of several things, while you are still legally competent to make that decision.
Advance Decisions and Living Wills
The least-binding approach involves making certain specific decisions if particular circumstances crop up, but only for as long as they continue. For example:
1… You could decide to refuse life-extending medical treatment if you fall seriously ill with a terminal disease.
2… You could appoint your nominated next of kin to manage your day-to-day financial affairs while you are unable to do so.
However, please do note that advance decisions / living wills need to be in the form of rock-solid documents, that would stand up in Court were this necessary.
Lasting Powers of Attorney
The above arrangements are a ‘private matter’ between the parties involved, and cover particular circumstances. However, a lasting power of attorney by contrast is a broader, official document that resides with the Office of the Public Guardian.
Typically, it grants permission for a solicitor to make decisions on your behalf, until you or a competent court rescinds it. Examples of where this might apply include the following:
1… You are developing Alzheimer’s and want to protect your financial assets from ‘sticky fingers’
2…Your health is failing and you are entering care. You need someone to make health and welfare decisions.
Making Your Last Will and Testament
The above strategies make someone, perhaps your de facto partner your custodian while you are alive. However, these arrangements all become null and void the moment you are no longer have breath.
Only a last will and testament can control what happens to your investments and possessions from that moment onward. You could make your next of kin your de facto custodian at that point by appointing them executor. But you must do so in your final will and testament for this to be legal.
Testimonial to Our Services to Deceased Estates
I would like to thank Jeffrey Avery and everyone at Avery Associates for assisting my dad and me. Following a death in the family, my father had to make last-minute move from the UK to the U.S. As COVID was just ramping up, we were unable to sort through my dad’s possession or find any legal documents pertaining to the death. Jeffrey was able to not only find the documents we needed, but procured a solicitor for us and placed all of my dad’s possessions into safe storage. Jeffrey did the job we couldn’t do and put us on the right direction to moving forward to sorting legal issues that — living in the States — I wouldn’t have known how to tackle. Hats off to Jeffrey and his staff! (J Sims, Washington USA)