When a loved one becomes unable to make their own decisions, perhaps through illness, dementia, or injury, questions often arise about who has the legal right to act on their behalf. Many people assume that their next of kin automatically takes charge, but in reality, this isn’t always the case.
At Hook & Partners, our experienced LPA & Deputyship Solicitors regularly help families understand their rights and responsibilities when it comes to decision-making authority. Knowing the difference between next of kin and power of attorney (also known as an LPA, or Lasting Power of Attorney) is essential and could save your family significant stress and confusion in the future.
Understanding Next of Kin
The term next of kin is commonly used to refer to a person’s closest living relative, usually a spouse, child, or parent. It’s a familiar phrase in hospitals, care homes, and other formal settings, but it’s important to understand that next of kin has no automatic legal authority.
Being named as someone’s next of kin simply identifies who should be contacted in an emergency or informed about their well-being. It does not grant the right to:
- Access their finances or bank accounts
- Make medical or care decisions
- Manage their property or bills
- Sign documents on their behalf
So, while being next of kin carries emotional significance, it does not carry legal power. That authority comes from a Power of Attorney.
What Is a Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows an individual (known as the donor) to appoint one or more trusted people (attorneys) to make decisions on their behalf should they lose mental capacity in the future.
There are two main types of LPA:
- Health and Welfare LPA: covers decisions about medical treatment, care arrangements, and daily living.
- Property and Financial Affairs LPA: allows attorneys to manage money, pay bills, and handle property matters.
An LPA must be made while the person still has mental capacity, and once registered with the Office of the Public Guardian, it becomes a powerful legal instrument.
Who Has Precedence: Next of Kin or Power of Attorney?
In legal terms, a Power of Attorney takes precedence over next of kin. If a valid LPA exists, the appointed attorney(s) have the authority to make decisions as outlined in the document, even if family members disagree.
For example:
- If a parent loses capacity and has appointed their eldest child as attorney under an LPA, that child will have the legal authority to manage their affairs.
- Even if another relative, such as a sibling, is classed as next of kin, they cannot override the decisions made by the attorney.
This can sometimes lead to family disagreements, particularly if relatives were unaware that an LPA had been made or disagree with the attorney’s choices. However, as long as the LPA is valid and the attorney is acting in the donor’s best interests, the law supports their right to act.
What If There’s No Power of Attorney in Place?
If someone loses capacity and no LPA exists, no one, not even their next of kin, can automatically make decisions for them. In this situation, a family member or close friend must apply to the Court of Protection for Deputyship.
A Deputyship Order gives the appointed deputy similar powers to those granted under an LPA, but the process is more complex, time-consuming, and costly. Deputies must also submit regular reports to the court and may face restrictions on what they can do.
This is why our LPA & Deputyship Solicitors at Hook & Partners strongly advise clients to create an LPA as early as possible. It provides certainty, reduces future stress, and ensures that decisions are made by people you trust.
Common Misunderstandings
Many people believe that their spouse or children can automatically act for them if they lose capacity. Unfortunately, this isn’t true. Even joint bank accounts can be frozen if one holder becomes incapacitated without an LPA in place.
Others assume that next of kin can make medical decisions, but doctors are only legally bound to consult the appointed attorney under a Health and Welfare LPA. Without one, healthcare professionals will act in the patient’s best interests, but may not necessarily follow family wishes.
Why Choose Hook & Partners?
At Hook & Partners, our specialist LPA & Deputyship Solicitors are here to make the process of setting up or managing a Lasting Power of Attorney simple and stress-free. We provide clear, practical advice and handle all the legal documentation on your behalf.
Whether you’re planning for the future or facing a situation where a loved one has lost capacity, we can:
- Draft and register your LPAs efficiently and correctly
- Advise on appointing suitable attorneys
- Assist with Deputyship applications through the Court of Protection
- Offer guidance if disputes arise between family members
Our goal is to help you protect your loved ones and ensure your wishes are respected, now and in the future.