Widespread misunderstanding about legal rights of “next of kin,” warns Kent solicitor

Joshua Williams

Partner

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July 15, 2021

A recent study has shown that millions of people risk losing control of their affairs if they become incapacitated by wrongly believing that their ‘next of kin’ would automatically be able to make decisions on their behalf.

Joshua Williams, Partner at Kent law firm, Furley Page, said: “Being a ‘next of kin’ only provides legal rights where children are concerned and, even then, only in certain circumstances. As such, although a spouse or close relative listed as a ‘next of kin’ may be kept informed of your condition and care, in legal terms the designation means very little and they will be unable to access your will, finances or medical records.”

The only way to give a ‘next of kin’ legal rights to deal with your affairs on your behalf is by appointing them under a lasting power of attorney (LPA). However, recent research by Direct Line Life Insurance found that only 14% of the population had such an arrangement in place, despite 80% of British adults expecting that their next of kin would automatically take over their affairs if necessary.

Joshua explained: “It is extremely worrying that so many people assume their affairs will automatically pass to a relative if they are incapacitated, while not understanding the complexity of the process to ensure this happens in practice. Arrangements for a lasting power of attorney can be made at any time and so we advise planning well in advance before your health deteriorates.”

There are two types of lasting power of attorney, with the first covering health and welfare decisions and the second authorising access to finances and property. It is possible to appoint the same person to both of these positions, but no person will be able to make decisions for you unless they have a valid lasting power of attorney in place.

If you become incapacitated without appointing a lasting power of attorney, it is possible for a court to appoint a deputy to manage your affairs on your behalf. However, this can be a lengthy process and can lead to important bills going unpaid in the interim.

Joshua warned: “Although the court may grant a family member control of a person’s finances, it is extremely reluctant to appoint a health and welfare deputy. So, without your legal authority, no family member will be able to override your doctors’ decisions on your behalf.

“This can be upsetting for many people, who would rather have loved ones make their choices so that they can make their wishes known in advance. Arranging a lasting power of attorney is the safest means to ensure that your desired person can make decisions on your behalf should your capacity to do so deteriorate.”

Furley Page has extensive experience advising on the implications and process of appointing a lasting power of attorney. For advice and support please contact Joshua Williams on jclw@furleypage.co.uk or call 01227 274241.