Organ Donation- do we know enough?
“Next of kin” is an emotive term; regularly used in the newspapers and a status worn by some as a badge of honour.
But what does it actually mean? Nothing; it’s not a legal term.
Being a close relative is only of legal relevance in two circumstances; when a person becomes mentally ill or when a person dies.
First, if you lose mental capacity, the Mental Health Act 1983 contains a defined pecking order of persons who might be contacted by the authorities if you are found wandering in the street with total memory loss, or are sectioned.
Secondly, there’s a reference to ‘statutory next of kin’ in the Administration of Estates Act 1925 which lists the people who inherit if a person dies intestate. If you’re not mentioned (like an unmarried partner), or in the wrong place in the pecking order, you will not inherit anything despite being “next of kin” for practical purposes.
But a call to name your “next of kin” is common; we often get asked for our “next of kin” by our employers, GP, schools for the purposes of contact in emergency. If you haven’t or can’t nominate a “next of kin” in such a situation, the person who turns up first will probably be identified as such.
Just about anyone can register a death. While the executors of the Will have the legal right to arrange the funeral, in reality arrangements are made by whoever is on hand first or wishes to do so. Without a clear legal definition of “next of kin” it is easy to see how decisions over funeral planning, medical intervention and simply being the ‘first to be notified’ can cause a family row.
Family disputes can be particularly toxic, distressing and explosive. Addressing the legal issue of who does what if you lose mental capacity or on your death avoids such potential drama and upset.
1. If you want to nominate someone to take charge if you lose mental capacity, you should make a Lasting Power of Attorney (LPA). There are two types. The Property and Financial Affairs LPA gives your chosen attorneys control of your bank accounts and investments, and the ability to sell your house, if necessary. The Health and Welfare LPA allows attorneys to decide what treatment you receive (or not) should you fall ill.
2. If it matters to you who inherits on your death, you need to have a Will which carefully reflects your wishes. Without a Will, your assets would be given away in accordance with intestacy rules. The intestacy rules attempt to find a “one size fits all” formula for inheritance. Rarely do the rules reflect the wishes that would have been contained in a Will, had one been made. In the context of relationships in the modern society, the intestacy rules inadvertently achieve an unfair situation. Where a couple is unmarried, the survivor would receive nothing and would have to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 to secure a just entitlement.
For further information on how to make a Will or a LPA please contact a member of our Private Client Team.
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