It’s a phrase that lawyers, doctors and care professionals hear surprisingly often.
“But I’m the next of kin.”
Sometimes it is said with confusion. Sometimes with frustration. Often it is intended to settle a discussion. The speaker assumes that being the closest living relative to a person gives them the right to make decisions, receive information or take control.
That belief is entirely understandable. Hospitals, care homes, employers and even our mobile phones routinely ask us to provide the details of our “next of kin”. The expression is ingrained in use and sounds as though it describes a recognised legal position.
But it does not.
Being someone’s next of kin may explain your relationship with them. It may mean that you are the person contacted in an emergency. It may make your views highly relevant. However, it is not, by itself, a source of legal authority.
The important question is rarely “Who is the next of kin?” It is:
“What decision needs to be made, and where does the authority to make it come from?”
What does “next of kin” actually mean?
In everyday use, next of kin usually means a person’s closest relative or the person they would want to be contacted in an emergency.
That person does not necessarily need to be a blood relative. Someone might nominate their unmarried partner, a close friend or even a neighbour as their emergency contact.
The problem arises when “person to contact” becomes confused with “person legally entitled to decide something”.
Those are very different things.
Depending upon the circumstances, legal authority to make a decision might come from:
- The person’s own decision;
- A Lasting Power of Attorney;
- An Order of the Court of Protection;
- A will;
- A Grant of Probate or Letters of Administration; or
- A particular statutory rule.
The words “next of kin” cannot take the place of any of those things.
What if the person still has capacity?
If an adult has capacity to make a particular decision, the decision belongs to them.
Their spouse, children or other relatives do not acquire a right to overrule them merely because they are the “next of kin”. That remains true even if the family considers the decision to be unwise.
The Mental Capacity Act 2005 begins with a presumption that a person has capacity to make decisions. It also provides that a person is not to be treated as unable to make a decision merely because they make an unwise one.
Capacity is also specific to the decision being considered. A person might be able to decide what they want to eat or where they would like to spend the afternoon, while being unable to understand a complicated decision about their finances or medical treatment.
The starting point is therefore the person themselves, and their own decision making, not their family hierarchy.
What changes if the person lacks capacity?
The loss of capacity in respect of a decision does not automatically transfer decision making power to the closest relative.
There is no general rule that a spouse makes decisions for their spouse, or that an eldest child takes control of a parent’s affairs.
Families do not inherit authority simply because somebody in the family becomes unable to make decisions for themselves.
Instead, it is necessary to identify whether anyone has been given legal authority.
For financial decisions, that authority may be held by an Attorney under a Lasting Power of Attorney for property and financial affairs, or by a Deputy appointed by the Court of Protection.
For health and welfare decisions, there may be an Attorney acting under a Lasting Power of Attorney for health and welfare. The Court of Protection may also make a specific decision or appoint a Deputy, although welfare deputyships are less common than those for property and financial affairs.
In other situations, the relevant professional may be the decision maker. For example, a clinician may need to decide whether a particular treatment is clinically appropriate and, if so, whether providing it is in the person’s best interests.
The Mental Capacity Act requires any decision made for somebody who lacks capacity to be made in their best interests. In working out what those interests require, the decision maker must, so far as is practicable and appropriate, take into account the views of people involved in caring for the person or interested in their welfare. Those views may help to identify the person’s wishes, feelings, beliefs and values.
That means the views of a relative may be extremely important. A daughter who has cared for her father for years may know far more about his wishes than a professional who has met him once.
But consultation is not the same as consent.
The relative is not being asked what decision they would make for themselves. They are helping the decision maker understand what matters to the person who lacks capacity.
There is no family vote. The eldest child has no casting vote. Nor does the person named as “next of kin” on a hospital form automatically outrank a longstanding partner, friend or carer who knows the person better.
Does “next of kin” provide access to information?
Being next of kin does not create a general right to confidential medical or care information.
Whether information can be shared depends upon matters including the person’s consent, their capacity, the purpose of the disclosure and whether disclosure is justified in their interests.
The position remains restricted after death. Under the Access to Health Records Act 1990, the principal statutory rights of access are given to the deceased’s personal representative and to a person who may have a claim arising from the death. The Act does not give a general right of access to whoever describes themselves as next of kin.
There is also an important distinction between “next of kin” and the “nearest relative” under the Mental Health Act 1983. “Nearest relative” is a defined statutory role with particular rights and functions, which go beyond the scope of this blog. It is not, however, merely another expression for an emergency contact or closest family member.
What happens when a person dies?
Death changes the legal framework, but it does not transform “next of kin” into a universal legal office.
If there is a valid will, the will normally identifies the executors who are to administer the estate. It also specifies who is to inherit.
The executor might be a relative, but could equally be a friend, solicitor or other trusted person. The beneficiaries might include family members, friends or charities. A close relative can be left out of the will altogether.
Being the deceased’s “next of kin” does not allow someone to displace the appointed executor or rewrite the distribution chosen by the deceased.
Where there is no valid will, the estate passes under the intestacy rules. This is where family relationships become particularly important, but “next of kin” remains an unreliable shorthand.
The statutory rules determine who inherits and in what proportions. They may give entitlements to a surviving spouse or civil partner and to children. Where there are none, more remote relatives may inherit according to a prescribed order. The estate does not simply pass to whichever individual appears to be the deceased’s closest relative.
This can produce unwelcome surprises.
An unmarried partner may have been recorded as “next of kin” for many years but does not inherit under the intestacy rules merely because of that nomination. Several children may have equal entitlement, regardless of their ages or who had the closest relationship with the deceased.
Nor does being entitled to apply for a grant make someone the beneficial owner of the estate. An administrator must collect and administer the estate for everyone who is entitled to it.
The order of priority for obtaining a grant in an intestate estate is governed by the Non-Contentious Probate Rules. It is based principally upon beneficial entitlement under the intestacy rules, not upon an informal next of kin nomination.
Who decides about the funeral?
The person recorded as “next of kin” does not automatically control the funeral arrangements either. Responsibility will ordinarily fall to the Executor or, if there is no Executor, the person entitled to administer the estate.
The deceased’s funeral wishes may be highly relevant, but they are not generally binding. Where family members disagree about burial, cremation or possession of the body, the issue can become urgent very quickly.
Can next of kin challenge a will?
Being “next of kin” is not, by itself, a ground for challenging a will.
A relative may have an interest in a probate claim because they would benefit under an earlier will or under the intestacy rules if the disputed will were declared invalid. However, they still need a proper legal basis for the challenge.
That might include lack of testamentary capacity, undue influence, lack of knowledge and approval, forgery or failure to comply with the required formalities.
Similarly, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is not a general claim for disappointed “next of kin”. Parliament has defined the categories of people who may apply. Those categories include certain spouses, partners, children and dependants. An unmarried partner or an unrelated dependant may qualify, while a sibling who was not financially maintained by the deceased may not.
Relationship may give someone an interest. It does not necessarily give them authority, an inheritance or a viable legal claim.
A label, not a power
“Next of kin” is a useful everyday expression. It tells an organisation whom to contact and may identify someone who knows the person exceptionally well.
The danger lies in expecting the phrase to do more than that.
It does not automatically confer the right to manage somebody’s money, consent to medical treatment, receive confidential information, administer an estate, inherit property or challenge a will.
Some of those rights may exist, but each requires its own legal foundation.
So when somebody says, “But I’m the next of kin”, the answer is not that their relationship is irrelevant. It may be deeply important. But it does not answer the legal question being asked.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
