How to Choose a Power of Attorney and Next of Kin

Your power of attorney (POA) or next of kin (NOK) may be called upon to make important decisions on your behalf, after you pass away or should you become incapacitated. To ensure your wishes are followed, name someone you trust as your power of attorney, and provide them with the right level of authority for making decisions in specific circumstances. It also helps to know when to name a next of kin and how to do so.

This guide covers what POA and NOK designations actually mean and how you can make them.

What is a power of attorney or next of kin?

Power of attorney and next of kin are not the same thing, though the decisions they are able to make might be similar, depending on the circumstances.

Next of Kin

Your next of kin is typically considered to be your closest relative by marriage or blood. If you’re married, for example, your next of kin is usually your spouse.

When you complete medical paperwork or preplan for something like a burial or cremation, your provider may ask you to provide the name of a next of kin. While you can write down any name you trust, state laws do have some provisions for who can legally act as a next of kin in certain situations.

Though the laws differ slightly in each jurisdiction, Everplans notes that the order of next-of-kin designations typically follows a common list. If the person at the top of the list isn’t available or able to act as next of kin, then the next person takes on the responsibility.

The common hierarchy is provided below. Note that someone may only act as next of kin if they are at least 18 years old and deemed mentally competent to do so.

  • Spouse
  • Children (step included)
  • Parents (step included)
  • Siblings (step or half included)
  • Legal guardian
  • Grandchildren (step or half included)
  • Great grandchildren (step or half included)
  • Nephew or niece
  • Grandnephew or grandniece
  • Grandparents
  • Uncle or aunt
  • First cousins
  • Second cousins
  • A legally appointed trustee

Everplans also notes that some states allow close friends to act as next of kin if none of the above relatives are available, but that’s not the case in every location.

Power of Attorney

While next of kin is a relationship designation, power of attorney is a legal designation. You can choose almost any adult you want as your power of attorney. It’s a good idea to make sure they’re on board with this responsibility, though. Completing a power of attorney form and naming someone as your POA doesn’t necessarily hold that person accountable for acting on your designation.

You can designate a power of attorney for a number of reasons, and you limit the decision-making and authority they have in your POA form. Common reasons people create POAs include:

  • To ensure someone has the authority to make end-of-life decisions on their behalf.
  • To authorize someone to assist with managing personal finances (such as being able to help with management of a checking account).
  • To ensure someone can talk to medical providers on their behalf.
  • To designate someone to make legal decisions if they’re no longer capable of doing so on their own.

Why do I need a POA or NOK?

Technically, most people have a next of kin, even if there is no one designated on medical or other documents. But you might not want your closest blood relative (as defined by the laws of your state) to be the person making certain decisions on your behalf. That could be what happens if you don’t take time to specify your own choice.

Each state has what is known as default surrogate consent laws. These laws dictate who can make medical decisions on your behalf if you haven’t designated a POA or NOK and you don’t have an advanced directive. An advanced directive is a legal document spelling out your wishes for life-saving care in certain circumstances.

For example, in the state of Florida, state laws provide a priority of surrogates as follows:

  • Spouse
  • Adult child (or a majority of your adult children voting together)
  • Parent
  • Adult sibling (or a majority of adult siblings voting together)
  • Close adult relative
  • Close friend

If none of these individuals are available, able, and willing to take on the role of a surrogate to make medical decisions when you can’t yourself, then Florida law requires a licensed clinical social worker appointed by an ethics committee to make decisions about whether you will be taken off of life support or not (in situations where that decision is applicable).

You can find specific information about surrogate consent laws in your state via this summary chart from the American Bar Association.

You can probably already see the need for identifying a NOK or POA: Most people would prefer these types of decisions be made by someone they know and trust. And the need doesn’t end with end-of-life medical care. Your NOK or POA may also be called upon to make decisions about your final disposition.

What roles or responsibilities does a power of attorney or next of kin have?

The responsibilities of the next of kin or power of attorney depend on how much preplanning you’ve done and what you designate in associated legal forms.

Common roles the next of kin might take on include:

  • Communicating with medical staff on your behalf.
  • Making decisions about medical treatments if you are incapacitated and can’t do so yourself.
  • Contacting a funeral home or crematory at the time of need.
  • Making decisions about memorial services, burial, or cremation if you haven’t made your wishes known.
  • Carrying out your wishes about end-of-life matters and final disposition if you’ve made them known or preplanned.

Someone you designate as power of attorney might take on any or all of the same roles. The difference is that the power of attorney role is limited specifically to whatever is stated in the POA legal form you or your lawyer create.

What rights does a POA or NOK have, and what decisions can they make?

Your next of kin, as designated by state law, has some rights. For example, most states have estate laws that protect next of kin rights to inherit. That’s especially true if you pass away without a will.

Some companies also offer next of kin privileges. For example, Facebook allows the next of kin to request access to a deceased’s Facebook profile or have it turned into a memorial account. Microsoft offers limited access to a deceased’s Outlook account so the next of kin or other authorized individual can bring any necessary communications, financial matters, or business to a close.

In the absence of any other legal forms for preplanning, your next of kin can make a number of decisions, including:

  • Whether you continue to receive certain life-support in a medical situation.
  • Whether you are buried or cremated.
  • Where you are buried.
  • The details of your final disposition if it’s other than burial (such as holding your cremated remains in an urn or scattering the ashes).

Your POA may make these types of decisions only if they are within the scope of the legal authority granted by your POA form. You can, for example, create a power of attorney form that only allows someone to make decisions based on your advance directive. You could also create a POA form that only allows someone to make a decision about your final disposition. At the same time, you can provide a more general POA form that grants someone more extensive decision-making power.

How do I assign someone as my power of attorney or next of kin?

You designate someone as your power of attorney by completing a power of attorney form and filing it with the right legal entity, if necessary.

If you want to create complex POA designations or are worried about specific limitations on your POA designee, then it might be a good idea to talk to an estate planning lawyer.

More simple POA forms can be created via templates and DIY services, including either Everplans or Legal Zoom.

Durable Powers of Attorney

Not all power of attorney forms are the same. If you’re planning to designate a POA to act on your behalf if you’re incapacitated (or even after you’re gone), then you need a durable power of attorney. These types of POA forms maintain force if you’re incapacitated. Some other forms may not remain in effect in such situations.

Designating a Next of Kin

You don’t actually have to assign someone as your next of kin in medical situations, as state surrogate laws help identify who your NOK is. However, because medical staff may need to talk to someone quickly, it’s a good idea to let them know who your preferred next of kin is in each situation.

Medical providers typically have a field for this on new patient or admissions paperwork. In most cases, hospital staff won’t question whether you have someone higher up the surrogate consent hierarchy if you list a relative who is also present with you. If the case becomes complicated or legal matters arise and you list someone who isn’t allowed under state law (such as a friend in a state that only allows family members as NOK), there might be issues.

If you want someone who isn’t high up on the next of kin list to make decisions on your behalf during a medical crisis or after you’re gone, it’s a good idea to invest in a POA.

Who can help me choose and assign a POA or NOK?

If you’re not sure who to choose as your power of attorney or next of kin, you can consult others for assistance.

  • Your lawyer can help you understand exactly what responsibilities are involved and who in your life might be a viable legal option for those roles.
  • A trusted family member or friend can help you discuss the pros and cons of assigning these roles to certain people.
  • The person you intend to choose may have a reason they shouldn’t or can’t take on the responsibility, so make sure you talk to them before making the decision final.

Should I tell anyone about my POA or NOK designations, and if so, who?

Yes, you should let people know about your decisions. Here are just a few reasons to make your POA and NOK designations known.

  • If no one knows you’ve identified a person to make these decisions on your behalf, then someone else may end up making them without full knowledge of your preferences.
  • Because state surrogate consent laws can be confusing — and don’t always specify an exact individual — foreknowledge that you have specified someone can reduce family arguments at the time of need.
  • The person you designate likely won’t be with you 24 hours a day for the rest of your life; other loved ones and professionals need to know to call that person at the time of need.

There’s really no limit to how many people you can tell about these designations. Here are a few people you might consider telling.

  • Your next of kin or POA. It’s easier to take on this type of role if it doesn’t come unexpectedly, and telling the individual ahead of time allows you to share your wishes with them so they have some guidance when making decisions.
  • Other close relatives. That includes your spouse, adult children, parents, siblings, and anyone else who is likely to be involved at the time of need or feel like they should have a voice in or knowledge of decisions made. By informing everyone of your decisions as early as possible, you reduce the risks of family arguments and stress later.
  • Close friends. Some friends may feel like relatives to you, and you might want to inform them about your decision for the same reasons you’d tell family.
  • Your family lawyer. If you have a lawyer, it’s a good idea to keep them informed about such decisions. They may be able to back up you or your POA/NOK in the future.
  • Medical providers. Ask about putting your POA or NOK decisions on file with your doctor’s offices or hospitals. That way, medical providers know who to speak to in the event of an emergency.
  • Funeral or cremation providers. If you preplan for your final disposition, let your providers know who they’ll be dealing with in your family.

What actions does my POA or NOK take at the time of need?

The actions required of or allowed for your POA or NOK depend on the situation and what type of preplanning you did ahead of time. Some common responsibilities might include:

  • Making a decision about end-of-life medical care; if you have an advance directive, your next of kin or POA simply have to ensure that your wishes are followed.
  • Contacting a funeral or cremation provider at the time of need.
  • Working with a funeral or cremation provider to plan for final disposition services and any associated memorials.

Even if you preplanned for a cremation or other type of service, your next of kin will have to sign final paperwork and put those plans in motion. He or she may also have to make some final decisions or fill in any details not included in your preplan.

How do I deal with loved ones who don’t agree with my choice of POA or NOK?

Your choice of NOK or POA may not resonate with all your loved ones. Here are some tips for dealing with loved ones and cementing your choices if some people don’t agree with them.

  • Since NOK isn’t a legal designation on your part, if you choose someone lower on the state hierarchy, other family members may be able to challenge it. In this case, you may want to bolster the position of your NOK by making him or her your power of attorney.
  • Make it clear that you’re not acting emotionally or without forethought. Explain that you considered your options logically and made the choice that you feel is right for you.
  • Be firm about your choice. Let family members know that you aren’t telling them so they can change your mind. Make it apparent that you are telling them as a courtesy and to remove doubt about the choice in the future.
  • If you know someone will be especially difficult about your decision, consider bringing a supporter with you when you discuss the matter. Make sure that person is there only for support, though, and doesn’t take over the conversation. That can make it look like the decision isn’t really yours.

What do I do after I’ve designated a POA and NOK?

Once you’ve designated a POA and NOK, store any associated legal documents in a safe place. This can be in a digital or physical location, or both.

Thinking Ahead

If you’re thinking ahead about end-of-life matters and want to ensure you plan properly for peace of mind and to protect your family, consider signing up for our Thinking Ahead email series.

 

Note: This post is intended as a resource to help families. Be sure to speak with a professional regarding determining a next of kin or power of attorney.


Published | Category: Resources.