The myth of next of kin
We all fill out forms on a regular basis that ask us to complete details such as ‘next of kin’ or ‘in case of emergency contact’. However, despite the widespread use of the phrase, there is no legal concept of a next of kin and in an increasingly complex society, the wrong assumption as to who may take decisions on your behalf can prove disastrous.
Take the example of a cohabiting but unmarried couple: they may share a mortgage, bank account and all the trappings normally associated with a committed relationship. However, in this situation, one partner may not be able to take decisions on the other’s behalf if they were unconscious in hospital. Or, the converse situation: a couple, married for nearly 50 years. What happens if only one of them is named on the bank account and that person is incapacitated?
In both these circumstances, we assume the ‘next of kin’ will be the partner or spouse. However, that person may have no power to act or the next of kin might, in fact, be someone you do not wish to make such important decisions on your behalf, such as a parent or sibling.
A Lasting Power of Attorney (LPA) is a document which confers legal power to another individual to act on your behalf. The document may refer to health and welfare or property and affairs. There are two significant restrictions on these documents:
- An LPA can only be prepared by someone who has mental capacity to make such decisions;
- An LPA can only be used after it has been registered with the Office of the Public Guardian.
If an individual has already lost mental capacity, for example, through an illness, then they will need a Deputy to be appointed by the Court of Protection. This is a far more expensive and invasive process.
Registration of LPAs can take up to nine weeks but once that has been done, it is up to the individual and their nominated attorney to decide when or how it is used; this can also be written into the LPA, to restrict the powers of the attorney if so required. The individual can cancel the LPA whenever they want, as long as they still retain the capacity to make such a decision.
Registering power of attorney
LPAs can be of assistance in most circumstances where you are unlikely to be able to convey your wishes, such as emergency medical treatment. Similarly, if you plan on being out of the country for several months, it may be wise to set up a property and affairs LPA to allow a friend or family member to deal with your bank accounts or property while you are absent. As the power is derived from the document itself, all your attorney needs to do is show a copy of the registered LPA to the organisation concerned, and they will carry out your wishes.
Posted on Aug 16th, 2012 by Lyons Davidson