The term ‘next of kin’ is used often and many would say they know who their next-of-kin is, but who is it really? And, what responsibilities are conferred by the role of ‘next-of-kin’?
Who can be your ‘next of kin’?
An individual can nominate anyone to be their ‘next of kin’. There is no requirement for that person to even be a blood relative or life partner.
What are their rights and liabilities?
A ‘next-of-kin’ does not have legal liabilities, cannot be given access to your medical history, and has no claim on your finances or personal possessions. This means that your next of kin cannot take over your banking and the paying of your bills if you are incapacitated or in a position where it would be difficult for you to look after your own bank account. If you wish to nominate your ‘next of kin’ (or any other person) to look after issues regarding your property or finances, you need to make a Lasting Power of Attorney for Property and Financial Affairs.
Nominating a person as ‘next of kin’ will not affect the contents of your Will.
If you die without a Will, and the Intestacy Rules prevail, only a spouse, civil partner or blood relatives (or those of half-blood) will be recognised by these rules. If your ‘next of kin’ does not fall into any of these classes they will not inherit. If this person is very close to you and you wish for them to inherit from you, you need to have a Will put in place to reflect these wishes.
A ‘next of kin’ cannot make decisions on medical treatment you might receive; if you wish to make clear your intentions regarding life-sustaining treatment or medical issues, you need to make a Lasting Power of Attorney for Health and Personal Welfare.
So, why name a ‘next of kin’?
- Your employer may ask you to give details of your nominated ‘next of kin’ so this person may be informed in case of accidents or emergency situations at work.
- Your GP may ask for you to name a ‘next of kin’ in case of extreme illness or admission to hospital.
- On admittance to hospital, even for nominal and straightforward medical procedures, you may be asked for the name of a ‘next of kin’.
- As mentioned above, you are likely to be formally asked to nominate someone on your admission to hospital, however if you are not in a position to do so because, for example, you are unable to communicate with doctors at that time, then the person the hospital decide to be your ‘next of kin’ may not be the person whom you would have chosen. This might be particularly important in a situation where only the next of kin is admitted to the hospital bed, and/or is the only person to be consulted by the doctors and medical staff. In such an instance it would be essential that you had nominated someone beforehand.
- Everyone’s circumstances are different and, in some families or situations, there may be confusion as to who the next of kin might be. You would be able to prevent confusion by making it clear who you wish to be the principle person for you if you are in an emergency situation (medical or otherwise).
- Might a family dispute occur regarding who was your next of kin? If you are co-habiting or in a close relationship – especially if it is with someone of whom your family do not approve – they might be some unpleasantness if the person whom you wish to be considered your next of kin is not the person whom your family agree to be in this position.
- This has happened with those in same-sex relationships, or where parents have not agreed with a choice of their son or daughter’s partner. Sometimes an estranged spouse might still consider themselves to be the next of kin as well as the person in the new girlfriend or boyfriend.
What does a ‘next of kin’ do?
Most of the ‘duties’ of the next-of-kin are concerned when a person becomes seriously ill or dies.
As mentioned above, the next of kin will be the first person hospital staff will inform and, in some cases, will only communicate with the next of kin.
If the person dies and the circumstances are of an accident or sudden death, the Coroner may order a post mortem – even in cases of a natural death in a hospital a post mortem may still be requested – and consent for a post mortem examination must be given by the next of kin.
With any death occurring in England and Wales, there must be registration the Register of Births Marriages and Deaths and this must take place within 5 days of the death in the registry area where the death occurred.
To register the death a medical certificate must be obtained by the next of kin and, thus, it is usually the next of kin who registers the death.
Although this will be a very stressful time, the person who is next of kin should now look to see if there is a Will in place. If a Will can be found then it might be able to answer the questions that doctors, hospital staff and others will now begin to ask. For example, the next-of-kin may be asked if the deceased wished to donate his or her organs or for their remains to be used for medical research. And, how did the deceased wish for the disposal of their body. If, for instance, they wished to be cremated, the doctor who certified the death will need to obtain a second certificate from another doctor. The likelihood is that, if there is a Will, it includes a clause describing what type of funeral the deceased person would like.
Further, a Will usually has an appointment of an Executor and, if this is the case, it will be the duty of the Executor to organise the estate from now on, including the funeral arrangements.
Although the funeral arrangements are the job of the Executor, in many circumstances, the funeral is arranged and, indeed, takes place before the discovery of a Will. If this is the case then the next of kin will generally be responsible for the funeral.
Mental Health Act
The Mental Health Act 1983 has a defined list of persons who would be considered next of kin (provided they have reached the age of majority) to an individual who does not have mental capacity. This list treats relatives of the half-blood as the same as full-blood relatives. Section 26 of the Act gives specific rights and responsibilities with regard to the treatment of a mentally incapacitated person to an individual classed, not as ‘next of kin’ but as ‘nearest relative’.
The list is as follows:
(a) Husband or wife;
(b) Son or daughter;
(c) Father or mother;
(d) Brother or sister;
(g) Uncle or aunt;
(h) Nephew or niece.
The Mental Act 2007 amends the Mental Health Act 1983 and the Mental Capacity Act 2005 by recognising those in Civil Partnerships as the same as those in a marriage.
Naming your Next of Kin
So, who would be your next of kin? Would this be an obvious choice or would you need to give some thought as to whom you would wish to take on this role?
If you would like to name a person of next of kin you can do so by signing a straightforward document which would ensure that everyone would know your wishes. The Will Bureau can draft such a document for you.
Tell us what you think. Should the law dictate a decisive list of who is the next of kin? Should this only relate to ‘blood relatives’ and therefore not include those to whom you are married?
Please give us your thoughts.
Further, if you would like to make a Next of Kin document and/or make a Will or a Lasting Power of Attorney for either Health and Personal Welfare or Property and Financial Affairs (or both) please give us a call on: 020 8920 3360 or contact us at: firstname.lastname@example.org. Alternatively, you can visit our website: http://www.twb.org.uk.
We look forward to hearing from you.