Why you cannot rely on your Next of Kin

Published: 04/01/2018

It’s shocking that, in 2017, people still don’t understand the crucial (and life-changing) difference between a Next of Kin and Lasting Power of Attorney, writes Linda Cummins, Head of Wills and Probate at GWlegal Solicitors

Many people assume that the person they identity as their Next of Kin (NoK) has the power to make important decisions for them, if they themselves cannot.

This is not actually the case.

Your NoK has virtually no legal standing.

While they may have certain rights after you die (e.g. if you die and don’t have a will), your NoK has no legal power while you’re still alive. So if you fall ill and lose mental capacity, you may not have your preferred decisions upheld. For instance, your NoK has no legal right to sign care or end of life plans or provide consent for hospital treatments. Your NoK also is not legally able to take control of your finances, meaning important bills; mortgage payments etc. could go unpaid while you’re in hospital.

This is why solicitors urge ALL individuals to create a Lasting Power of Attorney (LPA).

What is a Lasting Power of Attorney and why must I have one?

A LPA is a legal document where you appoint an ‘attorney’ (e.g. a trusted partner or close relative) to look after your affairs if you are unable to do so.

There are two types of LPA, one for property and affairs, including finances, and one for health and welfare, including medical treatment and accommodation decisions.

Your LPA will come into play if you lose mental capacity e.g. when:

The fact is without an LPA no one, not even your spouse or partner, has the automatic right or ability to take charge of your decisions and finances.

If you have not made a LPA and you lose mental capacity, the Court of Protection may make a decision on who is best able to make decisions for you. This can be a stressful experience for everyone involved, a stress that can be avoided by having a LPA prepared ahead of time. 

Do I need a solicitor or can I make a LPA myself?

For an LPA to be valid it must be registered with the Office of the Public Guardian (OPG).

While you can register an LPA with the OPG without legal advice, you may wish to use a solicitor to provide independent advice to ensure your interests are protected and that the LPA is correctly registered with the OPG.

Linda and her team can help

Linda is an expert in all things wills, probate, estate planning, lasting power of attorney and court of protection. She has more than 25 years’ overall legal experience, is a qualified Solicitor of 16 years and a qualified Trust and Estate Practitioner of 14 years. She is also a member of STEP (Society of Trust and Estate Practitioners) and is qualified to teach adult learners under the City & Guilds 7307 Certificate. She has been with GW, in total, for over 15 years.

Content correct at time of publication.