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The Next of Kin Myth

There’s a strong belief that if someone loses capacity to make decisions for themselves for some reason – perhaps an accident or dementia – then the next of kin can take responsibility.

But actually both the concept and the rights of next of kin are not as clear cut as we might think. Here are a few myths that need dispelling.

Partners are automatically next of kin

We might assume that a wife, husband or other legal partner takes precedence above all others in the role of next of kin. And then if there is no partner, perhaps parents come next. But what about adult children? Perhaps we need this set out formally somewhere.

The truth is that ‘next of kin’ can be anyone that an individual chooses. But, actually, who that person is tends not to be as important as we might think.

Next of kin can make decisions in a medical emergency

If someone is in A&E with a medical emergency, it will be the medical professionals who decide on the best urgent course of action. Next of kin will be notified, but they are not the decision makers. Anyone who has formally be named as an attorney in a Lasting Power of Attorney for Health and Welfare has a say in a person’s care, but next of kin have none, bar the professionals’ willingness to talk to them.

If the family get on, you don’t need to bother with an LPA

This is another confused issue, and even legal advisers have been known to suggest that as long as the family can work together, they don’t need to set up Lasting Powers of Attorney. But attorneys have legal powers that family members do not that mean they can act quickly.

Next of kin can take over management of bank accounts

Rules around who can manage bank and savings accounts, control bill payment and access cash on behalf of an individual are very stringent. Even borrowing someone’s debit card to do a bit of shopping or get cash out of an ATM is actually illegal. That’s a good thing on the whole, because the rules are there to protect the individual.

There are things you can do in the short term to help manage your parent’s affairs. The best way through these rules though is to have a Financial and Legal Lasting Power of Attorney already in place, which the attorney can then register with banks and other institutions to take responsibility for accounts.

You can always apply to the Court of Protection if need be

If you haven’t got an LPA set up for Health and Welfare and/or Finance and Legal, then if you want to have any responsibility, you’ll have to apply to the Court of Protection for Deputyship. This is currently taking months, and is far more expensive than setting up LPAs in advance. So yes, you can apply, but you’d be much better avoiding it with a bit of advance planning.

Setting up LPAs is expensive

You can choose to use a solicitor or other legal professional to help you set up an LPA, or you can go online and do it yourself. It’s reasonably straightforward to opt for the downloadable version to create applications yourself. The important thing is to do it now, not just for your parents while they have capacity, but for yourself too. Life happens, and if you’re incapacitated for some time, it’s going to be incredibly helpful to your family or supporters if they can swiftly take responsibility for money and welfare.

 

This article applies especially to England and Wales, but the situation across the rest of the UK is similar.

Photo by Tyler Nix on Unsplash

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