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  • Thomas Bradley & Co

Next of Kin and Power of Attorney: Does one override the other?

Next of Kin is the traditional term which usually refers to your closest relative. However, due to the historical significance and the presence of the term in our films, television shows and books, we tend to believe it has more legal significance than it does.

Many of us believe that our next of kin automatically takes on legal rights and responsibilities when we no longer have the capacity to do so. However, this is incorrect.

In accordance with UK law, the only time this occurs is for persons who are under the age of 18, with their parent or legal guardian automatically having the right to make health, welfare and financial decisions on their behalf.


Who can make decisions for me?


Not all of us have a straightforward relationship with our relatives or close family members. It may be the case that you wouldn’t want the people who would traditionally be seen as your next of kin e.g. parent, sibling etc. to be responsible for your health and welfare.


The traditional order of next of kin usually goes:


  1. A husband, wife or civil partner. Unmarried partners are sometimes included here, but not always.

  2. An adult child. Adopted children would be included here, but step-children might not be.

  3. A parent.

  4. A sibling.


However, although your next of kin may be asked for input, they do not have any specific legal rights which entitle them to make decisions about your health and care if required. If you have someone specific, who you trust to make decisions on your behalf, you must appoint them with these rights. This is known as a Power of Attorney.


What is a Power of Attorney?

A Power of Attorney is a legal, living document that allows you to appoint a friend or relative whom you trust to make decisions and act on your behalf, if the time were to come that you have lost capacity and are unable to make decisions for yourself.

Power of Attorney documents are drawn up whilst you have the capacity to understand the range of powers that you will be granting to your trusted friend or relative to assist you anywhere from your day-to-day life to the management of your finances.

Do I need a Power of Attorney?

If you neglect to put a Power of Attorney in place, you run the risk of placing your loved ones in a position where they cannot make decisions on your behalf when you have lost the ability to do so.

If you have informal arrangements with your loved ones on what they should do if the event should arise – doctors, lawyers and other professionals will not be able to just take their word for it without the proper legal documentation in place.

My loved one has lost capacity; what do I do now?

If a loved one has lost capacity and you would like to make decisions on your behalf, you will need to go through the costly and stressful process of becoming a court appointed Guardian in Scotland, or a Court of Protection appointed Deputy in England and Wales.

Aside from this being a costly and lengthy process, applying to be a Guardian or a Deputy for a loved one, you could be appointed a very limited set of powers.

In the worst case scenario, a failure to put a Power of Attorney could result in the person who has been granted either Guardian or Deputy powers being a person who may not have wishes to be responsible for making the decisions.

How do I get started?

If you are looking to put a Power of Attorney in place, get in touch with us today by contacting us on 0330 390 9200!


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