I was recently asked by online publication, Hello Care, to comment for an article on a heart breaking story of an elderly woman who had nominated a former aged care worker as her next of kin, because she had no other family or friends to nominate.
The heart-breaking story
Aged Care worker, Tegan Hastie, received a call from Police. They were notifying her that her grandmother had died. But Tegan wasn’t her granddaughter. She had been a carer for the woman but had not seen her much since she stopped performing that role. Unbeknownst to Tegan, the woman had listed her as her next of kin.
Tegan said she was “unbelievably upset this woman had not one person in her life to even list as a “family member.”
Hello Care journalist, Caroline Egan, wrote that the story “illustrates how important carers can become in a person’s life, how care recipients can come to rely on their carers and trust them as though they were family.”
What does ‘next of kin’ mean?
Next of kin means different things in different contexts, depending on the decision that needs to be made.
A next of kin is normally a:
- spouse or domestic partner
- adult child (eldest takes priority)
- parent
- sibling
- person who immediately before the death was the deceased’s personal representative
- person the coroner decides is the senior available next of kin.
Medical providers, hospitals and aged care facilities may ask the person to nominate a next of kin. This is the person they need to contact to advise that something important has happened. These nominations may only be available to the relevant facility, or they may form part of the person’s medical records. In all cases, they are a medical nomination, rather than a legal nomination.
Can you nominate a service provider or aged care worker as your next of kin?
In aged care, the term ‘next of kin’ is often used at the time of death and relates to the person who is first notified of a person’s death.
A resident of an aged care facility can appoint an aged care worker as next of kin, provided the resident was capable at the time and did it of their own free will. But some aged care providers have their own rules relating to the practice.
And, while there is nothing wrong with it legally, it can be difficult for a person who works for a service provider or organisation (i.e. a nursing home) to prove that he or she has been nominated as next of kin. For example, when giving instructions to the funeral home, a related person can show a birth certificate to prove that they are related, which an unrelated service provider is not able to do so.
The aged care worker would not be recognised as a ‘senior available next of kin’ according to the definition of the Human Tissue Act 1983 (NSW), which means they may not be able to give instructions for post-mortem examinations or organ donation.
Practically, it is far better to have a legal nomination, such as an:
- executor in your will to organise your funeral, give notice of your passing and distribute your assets
- attorney under Power of Attorney to make financial decisions while you are still alive
- enduring guardian to make medical decisions for you while you are still alive.
Next of kin and funerals
If a person dies with a will, the executor of that will plans the funeral and decides what happens with the body. But if the person has died without a will, the next of kin decides what happens with the body, including organising the funeral.
If a person dies in hospital without a next of kin and has no assets, then the hospital takes responsibility for arranging the funeral. If a person dies without a next of kin and without assets, the police organise a funeral. If the person has assets, the NSW Trustee and Guardian (or similar body in other states and territories) administers the estate and organises the funeral.
More information on wills and legally appointing a next of kin
Our expert, caring elder lawyers can talk you through the need for and the options available to you regarding nominating a next of kin or an executor of your will, or enduring guardian.
