How is next of kin determined in 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.

The ‘Senior next of kin’ is the family member who is recognised as the main point of contact by the Coroner, and the main decision maker when decisions need to be made.

He or she will be notified about any medical procedures and will also be provided with updates on the progress of the investigation and any medical reports provided to the Coroner.

It is necessary to have a Senior next of kin, because the Coroner cannot contact and receive preferences from all members of the family individually. 

Who can be the Senior next of kin?

The Senior next of kin is determined by an order of priority specified by the Coroners Act 2009. If the person who would otherwise be the Senior next of kin does not wish to take on the role, they may nominate another person as their 'delegate'.

According to the Coroners Act 2009, "Senior next of kin" of a deceased person means:

(a) the deceased person’s spouse, or

(b) if the deceased person did not have a spouse or a spouse is not available – any of the deceased person’s children who are adults, or

(c) if the deceased person did not have a spouse or child or a spouse or child is not available – either of the deceased person’s parents, or

(d) if the deceased person did not have a spouse, child or living parent or a spouse, child or parent is not available – any of the deceased person’s brothers or sisters who are adults, or

(e) if the deceased person did not have a spouse, child, living parent, brother or sister or a spouse, child, parent, brother or sister is not available:

(i) any person who is named as an executor in the deceased person’s will, or

(ii) any person who was the deceased person’s legal personal representative immediately before the deceased person’s death.

"spouse" means:

(a) a husband or wife, or

(b) a de facto partner,

But where more than one person would so qualify as a spouse, means only the last person so to qualify.

Note

“De facto partner” is defined in section 21C of the Interpretation Act 1987.

Who is next of kin in NSW?

Who is legally classed as next of kin?

How is a next of kin determined?

Who is next of kin if not married Australia?