Who is My Next of Kin

Who is my Closest Living Relative, and What Authority do they have?

Martin Lewis has also been at pains to point out that your next of kin for most people during their lifetime is actually a Judge in the Court of Protection.

That’s right—your wife, partner, children, etc., have no rights to make decisions for you when you are not up to it if you don’t have Lasting Powers of Attorney in place to authorise them. That doesn’t mean no one will listen to them, but their views may be considered irrelevant by the authorities or companies. The only exception is that parents are the legal next of kin and can make decisions for children under 18.

If a child does not have mental capacity on reaching 18, then the Court of Protection will accept applications for making the parents, Social Services, or a professional the Deputy for the young adult.  All this is at a substantial cost, of course, with professionals being paid plus additional annual costs, too.

On death, the position changes, and you might guess the correct answer (husband, wife, parents, children).  But this article looks at the situation where you remain legally alive, and I will cover that further down the page.

Does an Advance Directive help?

An Advance Directive can instruct that you don’t want certain treatments – such as blood transfusions for Jehovah’s Witnesses.  But what it can’t do – and neither can your family – is move you into a care home, or worse, stop Social Services from moving you into a care home against your and your family’s wishes.  Of course, that is unlikely – but Google “Betty Figg” whose story is heart wrenching.

Next of Kin (or others) as Joint Account holders – a Warning

Another story I was personally involved in trying to sort was of a large chap with bad knees, whose wife was not strong enough to pick him up.   So – though in good mental health – he needed residential care.    If you go into a Residential Care home, banks generally don’t generally worry too much, though they might.  But if you go into a Nursing Home, they may well assume you have lost “mental capacity” – the ability to make your own decisions.  Sadly, my new client had to go into a Nursing Home as none of the local care homes at the time had the hoist required to pick up a 20-stone man from the floor.

The wife happened to mention this to the bank teller at Langney, who asked her to hold on.  A few minutes later, she came back with the duty manager, who essentially told her that the account was frozen until they had proof of the husband’s ability to make decisions (“mental capacity”).   She was invited to bring him in for an interview.  Sadly, this would have involved an ambulance or other specially adapted vehicle ferrying him out from Eastbourne Centre to Langney to be interviewed.  No, it wasn’t possible for the Town Centre staff of the bank to pop into the Nursing Home to see him, though some undoubtedly passed it on their way to and from work.

Watch this: Professor Keith Brown spoke at a recent Society of Will Writers Conference discussing the issue of next of kin:

 

 

Let’s try a General Power of Attorney – quick and cheap.

My first tactic was to get a General Power of Attorney signed.  The bank refused to accept it, repeating their demand for an interview and refusal to visit the account holder.

No Go – SO On To Lasting Powers of Attorney

So it had to be both types of Lasting Power of Attorney, which I was able to arrange urgently as he still had his wits about him. The Office of the Public Guardian took 13 weeks to process the documents (as of June 2024, it is now 20+ weeks if all is perfect—and I mean, perfect).

So after just over 3 months my new client was able to draw from their joint bank account, and repay the loans which had enabled her to eat and pay bills during the previous period.

The account was a joint one, but all the money going into it was her husband’s pension, which could not be diverted.

With a joint bank account, both parties have to be capable of making decisions, not just one, so they are absolutely no substitute for Property and Financial Affairs Lasting Powers of Attorney. Fortunately, in this case, there was no dispute as to his ability to make decisions from Social Services, so the Health and Welfare Lasting Power of Attorney became useful later on in this sorry saga.

The lesson is that, while you are alive, your next of kin for practical purposes are your Attorneys under your Finance and Welfare Lasting Powers of Attorney, should you be unfortunate enough to lose the ability to make decisions within a reasonable time.  A stroke, heart attack, road accident, pavement trip and a thousand other often harmless events could put an absolute stop to decisions – until the Court of Protect can program you in, assuming you can afford lawyers fees or get help.

So contact me to get those Lasting Powers of Attorney in place as soon as you hit 18 – and if you are a bit older than that, hopefully, you have been lucky so far!

But who is the legal closest on death?

If there is a valid Will in place, then for practical purposes, it is the executors of the Will who are, in effect, taking on that authority.

More on that topic on this page.

Things can get pretty complicated, so check out the Government site for a definitive answer on death.

What is Mental Capacity?