Next of Kin (NSW)

The term ‘next of kin’ is commonly used to refer to a person’s closest living relative. It is generally used interchangeably with ‘emergency contact person’. ‘Next of kin’ is not defined under Australian law nor does the phrase have any legal meaning. A person is generally asked to nominate a person as their next or kin or emergency contact person when commencing employment or starting a relationship with a medical professional. This is the person who will be contacted in an emergency.

Does a next of kin have to be a relative?

A person’s next of kin does not have to be a blood relative, although it is common to use a blood relative such as a parent or sibling as next of kin. If a person does not have a living blood relative or is not close to their blood relatives, they may nominate someone else such as a friend or neighbour as their next of kin.

If an employer or doctor needs to contact someone in an emergency, they will contact whoever is on their records of being the person’s next of kin. For this reason, it is important to ensure you inform your employers and any medical professionals you deal with of the person you would want to be contacted in case of an emergency.

Who will be treated as my next of kin when I die?

If you have a person who you want to be treated as your next of kin when you pass away and that person is not a blood relative or a spouse, there are steps you can take to ensure that person is recognised as your next of kin. One step you can take is to make that person the executor of your will. This will ensure that they will be involved in any decisions that are made about your funeral and burial arrangements and well as in administering your estate.

If you are appointing a person as executor in your will and you want to ensure the importance of that person to you is acknowledged, it is prudent to make this clear through the wording you choose to use. For example, to nominate a partner as you executor, you could state ‘I nominate my lifelong partner, Bill Smith as executor’ as opposed to saying only ‘I nominate Bill Smith as executor.’ This may be particularly relevant where the person nominated is a partner, the parties are not married and the relationship is not registered.

Another step you can take is to make sure your treating doctors, employers, landlord and anyone else who may need to contact your next of kin has the details of the person and is aware of their relationship to you.

If you want the person to be able to make decisions for you while you are alive you may also want to consider appointing them under a Power of Attorney.

Legislation

There are several pieces of New South Wales legislation that provide guidance on how to determine who is a person’s next of kin in various circumstances.

When the coroner needs to establish who a deceased person’s next of kin is, they will decide this by reference to an order of priority sets out in the NSW Coroners Act 2009. The person who is the most senior next of kin according to this order of priority will then be asked to make the decision. The deceased’s spouse is first in line, followed by adult children, parents, adult siblings and then the person named as executor of their will.

When a person has died and a decision needs to be made about organ donation, a next of kin will be established by reference to an order of priority set out in the Human Tissue Act 1983.

What if there is no next of kin?

If a person dies and no next of kin can be located, their funeral will be organised by a government agency. If the death occurred in hospital, the hospital will arrange this. If the death occurred at home, the police will organise burial or cremation after a death certificate has been issued.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.