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Who is next of kin?

(25 Posts)
DeckSwabber Wed 29-Oct-14 11:14:09

How do you decide?

And does it matter - I mean does it have any legal standing?

My widowed mum has a twin sister who insists she is next of kin. She has got herself down as next-of-kin on hospital forms etc.

They currently live together but this is going to change for reasons of health (mum currently in hospital).

My mum is OK but confused - I can't put the question to her.

She has two children: me, and my brother who is older than me.

It's an issue because we need to make some big decisions soon, and there isn't agreement as things stand.

Power of Attorney for Health and Welfare is currently held by her sister and my brother and myself, so that isn't going to to answer the question.

postmanpatscat Wed 29-Oct-14 11:16:49

I think it's the child, not a sibling, if the spouse is deceased. Eg if you are unmarried but childless, your next of kin is your parent. If you have a child, they are your next of kin.

You don't need an agreement, it's the law. Try Citizen's Advice maybe?

Coffeethrowtrampbitch Wed 29-Oct-14 11:20:17

You should be able to Google it, I did for my great aunt and agree it should be you or your brother if your mother does not have a spouse. I am in Scotland though so may be different rules if you are in England, Wales or NI.

tywysogesgymraeg Wed 29-Oct-14 11:21:28

Hi

It does matter, and it does have legal standing.

Your next of kin is usually your partner, if you're married, and after that, your children.

If you have no spouse or children, it will be a parent, and if you have no living parent either, it will be your siblings.

Next of kin would normally be consulted/have to give permission for something like an operation where the patient is unable to give permission him/herself.

However, you can nominate anyone to have this responsiblilty if you don't want your NOK to be consulted.

DeckSwabber Wed 29-Oct-14 11:21:37

I've googled but not really getting an answer - I wondered if anyone had experience.

It doesn't seem to have any legal standing.

DeckSwabber Wed 29-Oct-14 11:22:12

oops - cross posted! Its confusing.

FelicityGubbins Wed 29-Oct-14 11:32:30

Phone a solicitor that does wills and probate and ask them, they should know.

IndianBlueGlass Wed 29-Oct-14 15:08:56

Your mother's next of kin is her eldest child.

CogitoErgoSometimes Wed 29-Oct-14 15:13:08

Definition of Next of Kin From this website

The term "next of kin" is most commonly used following a death. Legally, it refers to those individuals eligible to inherit from a person who dies without a will. Surviving spouses are at the top of the list, followed by those related by blood. In the absence of a surviving spouse, blood relatives are assigned a "degree of kindred number" by the court: Tier one is typically parents and children; tier two is brothers, sisters and grandparents.

Which makes you 'tier one' and your aunt 'tier two'. The exception is if your DM has made any expressions of wish, power of attorney or nominated someone else as her next of kin for administrative purposes

AcrossthePond55 Wed 29-Oct-14 15:43:23

NOK is different for inheritance and healthcare. It appears that in the UK there really IS no legal precedent for NOK in healthcare situations, an individual can name whoever they like as NOK. For inheritance purposes, there is a legal list for who stands to inherit based on relationship to the deceased.

If your mother put her sister down as NOK, it appears that she would then be the NOK. If her sister put herself down as NOK because your mother was not capable, you may have recourse to override it. The joint POA may be a bit more problematic. I can certainly see where it would be distressing to me to have my wishes regarding my mother overruled or stopped by an aunt.

Does your aunt have children that may be able to persuade her to step back and let you and your siblings direct care?

DeckSwabber Wed 29-Oct-14 16:26:10

Across that is the plan.

My mum hasn't named anyone. She has barely expressed any wishes at all, leaving a frustrating vacuum.

ovaryhill Wed 29-Oct-14 16:32:13

Next of kin has absolutely no legal standing at all, whoever has power of attorney has the legal right to make decisions. Go to cab or look it up on their website

scarevola Wed 29-Oct-14 16:35:59

It's often a bit of a nebulous concept in jurisdictions where, pragmatically, non-marital partners can act as NOK.

As your DM has put her sister, you and your brother all on the Power of Attourney (when she was legally of sound mind) her wishes would be interpreted as being happy for any of you to act. And a sibling co-habitant holding Power of Atourney is a suitable choice. That doesn't mean there are no other suitable choices. But unless you can show that the sister is not acting in her best interests, it would be hard (or at least slow) to demonstrate that she is unsuitable.

It'll come down to what decisions need to be made, and when.

(NB: not directly qualified in this, but my family had to sort out Stuff for an elderly distant relative when she outlived all the obvious close ones. The last resort is Court of Protection and even when everyone agrees it can take ages to get the final paperwork. If there is any way you can avoid that, I really would try to reach a series of negotiated agreements as situations arise).

AcrossthePond55 Wed 29-Oct-14 18:20:06

So if Mum didn't specifically name Aunt as NOK on the hospital paperwork, then I'd say the POA is in effect. Is it 'joint' or 'several' decision-making? Our mum's healthcare POA is 'several' decision-making, meaning that either my DB or I can make decisions so that if one of us is gone there wouldn't be a break in her care waiting for the other to get here. Her financial POA is 'joint' meaning that DB and I must both agree on decisions.

Does the hospital have a Social Worker or Discharge Coordinator? If there are important decisions to be made as far as continuing medical treatment or where your mum will go (as in her sister thinks she can care for your mum at their home when she really can't) you may want to talk to them and explain the situation. If not, then you may want to talk to a solicitor.

I can't imagine how awful it would be to have our wishes for our mother countermanded by another family member!

DeckSwabber Wed 29-Oct-14 22:59:28

Thank you everyone for your replies. It has been awful and we are at a crunch point. sad

mamadoc Thu 30-Oct-14 01:01:46

For health decisions NOK has no legal standing. It is not any kind of official status it's just a way of us knowing who to ring.

If a person has capacity they make their own decisions.

If a person lacks capacity eg because they have dementia or another reason for confusion and this impairs their ability to make a decision then the LPA kicks in

You will need to look at the actual paperwork to see if it was instructed jointly (all parties must agree) or jointly and severally (any of the named people can act independently of one another)

I am not sure what the legal position is if the attorneys disagree. I suspect that it might even be down to the Court of Protection to rule on it but that would likeLy take ages and be expensive.

Practically if she is in hospital then there will be an element of who is most present/ shouting the loudest and /or who seems to the Drs / nurses/ social workers to be acting in your mum's best interests.

I would suggest that if you know there is going to be a disagreement then you check the paperwork carefully, get legal advice and make your position known very clearly preferably in writing so that it will be included in the case notes.

mamadoc Thu 30-Oct-14 01:09:24

BTW under the mental capacity act in fact no-one apart from a person's nominated attorney or a deputy appointed by the Court of Protection can give consent on their behalf.

If neither of these applies it is down to the Dr/nurse/social worker etc to decide in the persons best interests. They are required to consult the family but they don't have to do as they say. If there is a dispute an independent mental capacity advocate is instructed.

People think NOK is a real thing but it has no legal status certainly for health and welfare decisions. If you want that you need to be appointed properly under LPA or COP

x2boys Thu 30-Oct-14 08:42:54

Nok and nearest relative can be two day afferent things as I understand it you can Nomin ate whoever you want as your nok but legally your nok is usually your spouse if not married and no children than its your oldest parent ,if you don't have a spouse but havec over eighteen its your oldest child ,if you have none of these than the your sibling cousin is etc I.m a mental heath nurse this is how it works under the mental health act.

x2boys Thu 30-Oct-14 08:43:52

Sorry legally your nearest relative .

x2boys Thu 30-Oct-14 08:46:50

And the nearest relative is the one that has to be consulted unde the mental health act .

mamadoc Thu 30-Oct-14 20:37:11

X2boys is right about the mental HEALTH act (ie where someone is being 'sectioned' for mental illness) but the mental CAPACITY act is a different piece of legislation and the concept of nearest relative does not apply to the mental capacity act.

DeckSwabber Fri 31-Oct-14 08:32:51

Thank you everyone.

It's a nightmare when people see the same situation so differently.

Generally, she'll agree to whatever anyone suggests if they are determined, even if she's really sad about it. If people disagree she clams up.

When we are alone she confides in me (in a very roundabout, indirect manner) that she's unhappy but usually won't say anything more specific if I press her so establishing her wishes is well nigh impossible. And she won't repeat what she has said in front of others.

sigh

mamadoc Fri 31-Oct-14 09:47:35

Perhaps she needs an advocate? Ie someone who is there as an independent person, outside the situation who can sit and listen to her and then represent her views.

There is a person called an IMCA, independent mental capacity advocate, who has a statutory role under the MCA to represent the views of people who lack capacity where they have no family or where family disagree or Age Concern provide advocacy services more generally for older people.

You could ask for her to be referred if she is in hospital. It also takes pressure off you and stops you being blamed by anyone later if you can say that a professional person was involved.

DeckSwabber Fri 31-Oct-14 10:03:37

Gosh mamadoc that's a really good idea. I've been thinking the same but wasn't aware of what help was available.

I'm going to propose a family meeting as soon as we are clearer on her care needs, and this seems like a good thing to suggest.

AcrossthePond55 Fri 31-Oct-14 15:29:27

Excellent suggestion mamadoc!!!

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