What is the difference between Next of Kin and Power of Attorney?
Posted on 6th November 2023
Navigating the complexities of the correct legal authority in times of incapacity or critical health decisions is a challenge faced by many families across the UK. The confusion between the roles of 'next of kin' and individuals holding 'Lasting Power of Attorney' (LPA) is a recurrent theme, both in real-life scenarios and popular media portrayals, such as in the long-running TV show, EastEnders, which sometimes mirror the real-life dilemmas faced by individuals and families. Our Solicitors in Lytham have discussed, below, what the differences are, and how you can circumvent these issues.
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What is the legal difference between 'Next of Kin' and 'Power of Attorney'?
The distinction between next of kin and someone who holds Lasting Power of Attorney is not merely procedural; it's rooted in law and carries significant implications. Under UK legislation, specifically the Mental Capacity Act 2005, an LPA is a legally recognised position, allowing an individual (the 'donor') to appoint one or more 'attorneys' to make decisions on their behalf should they lose the capacity to do so themselves. This can relate to health and welfare, including medical treatment and living arrangements, or to property and financial affairs.
In contrast, 'next of kin' is a term that holds no legal weight in decision-making authority. It is commonly used in hospitals or by doctors to identify whom to contact in case of an emergency or to make care-related enquiries when a patient cannot communicate their wishes. However, next of kin cannot legally make decisions on behalf of an incapacitated person, unless they are also appointed as an attorney under an LPA.
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UK case law has set out the boundaries and responsibilities of Attorneys acting under Lasting Powers of Attorney. In Re P [2009] EWHC 163 (Ch), the court had to address the scope of an attorney's powers, emphasising the legal obligations to act in the donor's best interests. Additionally, Re G (TJ) [2010] EWCA Civ 300 reinforced the principle that the incapacitated individual’s wishes, as represented by their attorney, must be prioritised over other family members' wishes.
Lasting Powers of Attorney in the Media and Legislation
The UK legislation has built-in safeguards to prevent abuse of powers by appointed attorneys, wherever possible. The Office of the Public Guardian (OPG) oversees the registration of LPAs and can intervene if there is suspicion of misuse, as dramatised in several storylines in EastEnders, mirroring real-life situations that can arise from misunderstandings or deliberate abuse of the position.
The media often sheds light on the emotional and legal struggles associated with LPAs and next of kin disputes. EastEnders, for instance, has brought to light the difficulties in understanding the limitations of being a next of kin, especially when no LPA is in place, highlighting the crucial need for legal awareness. In a recent episode, Jay, who sadly recently lost his wife, was in a car accident. Jay was not legally adopted by Billy, but had been fostered, albeit not through the formal channels. As such, the Police and Hospital were unable to disclose any information about his condition, nor allow the family to be involved with making decisions. Whilst sometimes TV dramas can over-emphasise certain aspects of reality, in this case, the struggle that the characters faced is something our Solicitors in Lytham come across all too often.
Why are Lasting Powers of Attorney important?
What these cases and media portrayals teach us is the need for clarity and awareness. It’s advisable for individuals to consider setting up an LPA, and to discuss their wishes with family and potential attorneys, as early on in life as possible.
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The contrasts between next of kin and Lasting Power of Attorney are significant and legally profound. While next of kin may be emotionally significant, the Lasting Power of Attorney holds the legal authority to act. As highlighted in both case law and television dramas like "EastEnders," understanding these roles is essential for anyone planning for the future. Such planning includes not only the creation of LPAs but also promoting discussions about personal wishes and the potential need for advance decisions to guide healthcare treatment. This blend of legal knowledge and media representation continues to shape public understanding and actions regarding personal health and financial matters in the UK.
As you can tell, having an LPA in place, can be essential. None of us know what the future holds, and, when we work hard for what we have, we need the right people looking after our assets, and our loved ones, when we no longer have the strength, or mental ability to do so. Come and meet our team of solicitors in Lytham at MG Legal, if you have any questions regarding Wills, Lasting Powers of Attorney, or matters relating to Probate. With offices across Lancashire, and home visits available, we are ready when you are, to get the ball rolling, and your personal affairs in order.
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Tagged as: Lasting Powers of Attorney, Solicitors in Lytham
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