What is meant by ‘next of kin’?
Contrary to what many people think, the term ‘next of kin’ has no legal definition in the UK. This is not the case in other countries such as the United States. A next of kin is generally accepted to be the closest living relative of an individual, but there is actually no requirement for this to be a blood relative, and it is possible to nominate a close friend.
It is also important to say what a next of kin is not. Nominating a person as your next of kin does not necessarily mean they stand to inherit from you (i.e. just because they are your next of kin); this is defined in the person’s Will or the rules of intestacy (where a Will does not exist). A next of kin is also not necessarily about parental responsibility, and this cannot be automatically assumed (for those under 18, a parent or guardian is typically listed as a next of kin).
We are typically asked for our next of kin in situations of life and death, such as following admission to hospital or where we are about to undertake a dangerous activity.
How is a next of kin determined?
There is no one way to determine a next of kin as this is ultimately a personal choice. In the event where this is not known, or a person is trying to work out their own next of kin, the typical order of priority is:
- A married or civil partner - an unmarried partner may be included, but this cannot be automatically assumed.
- An adult son or daughter (whether biological or adopted) – an adult step-child may be included here, but this cannot be automatically assumed.
- A mother or father
- A brother or sister
In a medical setting, most hospitals are flexible about who you nominate as your next of kin, meaning you may choose to list a close family member, another family member, or a friend. The main point of a next of kin in this setting is to have a point of contact. If the person is unconscious or unable to provide their next of kin, the hospital will try to find the person’s closest living relative using the order above.
What rights does a next of kin have?
You may be surprised to hear that a next of kin does not automatically take on the legal rights and responsibilities on behalf of an individual (this is different if the person is under 18, however). This means that while a hospital may have a next of kin contact, that person cannot give consent to providing or withholding care (but they may be able to provide guidance on their wishes). To acquire the right to make decisions on the health and care of an individual, or regarding their financial affairs, they would need to be appointed as an attorney (lasting power of attorney - LPA). There are two types of LPA:
- Property and Financial Affairs; and
- Health and Welfare
In the event that a person does not appoint an attorney and they lack the mental capacity to do so, the next of kin may need to apply to the Court of Protection to acquire the rights to make decisions on their behalf. In this case, a deputy can be nominated; a property and financial affairs deputy or a personal welfare deputy, or both.
In the event of death, where there is no Will and hence no named executor, a next of kin can apply to become the estate Administrator by applying for a Grant of Letters of Administration. If this is approved, the next of kin can make decisions on the estate of the deceased.
Given that the concept of ‘next of kin’ is not defined in UK law, it only serves a very limited function. A next of kin does not have automatic rights or duties placed upon them under law. This is why we always recommend to our private clients to write a Will making clear who they wish to handle their estate and nominate an attorney (or attorneys) who can handle the property, financial, health, and welfare decisions needed on their behalf, whether due to mental incapacity, physical incapacity, or death.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced private client team who can assist you with all matters relating to Wills and LPAs. To make an appointment, please call us on 01932 840 111.