Tag Archives: elderly

Dementia and Alzheimer’s. What happens when it’s too late for a Power of Attorney in Scotland?


If someone loses mental capacity before they have a Power of Attorney in place, who can manage their finances and welfare?
Arranging a Power of Attorney early can save money and avoid problems in later life.
Nobody wants to consider what would happen if they or a family member lost capacity to make their own decisions.
But if you leave it too late to put a Continuing Power of Attorney in place, you risk a court appointing a stranger rather than a trusted friend or relative.
It’s not an automatic right that a next of kin takes on dealing with your affairs. If you have or a parent has just been diagnosed with dementia, for example, it is vital to consider a Continuing and Welfare Power of Attorney. The Continuing part deals with the financial side and the Welfare with medical treatment and personal matters.
This allows allows you to choose one or more people to handle your financial and property affairs, alongside making decisions about your health and welfare.
However, this can only be done when you have mental capacity – the ability to make sound decisions.
This is as important as making a Will in these days when people are living longer.
By the way, a diagnosis of dementia does NOT mean it too late.
If no PoA is in place, someone has to apply to the Sheriff Court to become a Guardian before they can deal with matters on your behalf.
At a stressful and upsetting point, this takes a long time. It is, also, expensive costing some thousands of pounds.
If a relative is not appointed, a professional will be and there will be ongoing costs.
Better, all in all, to avoid that and the easiest and most affordable way is at www.MyScottishAttorney.co.uk.
You can have it, in the next half-hour, for yourself or relative, like your Mum and Dad, and, although you need to go to see a doctor (or Solicitor) to have it signed off, the rest is all dealt with at home.

Bruce de Wert
Scottish Solicitor

Bruce is a Solicitor who, as Director of the company behind MyScottishAttorney, makes the complicated simple.
You can make  a Scottish Will or a Scottish Power of Attorney for yourself or your loved one.

 

Dementia and Powers of Attorney in Scotland

 


Dementia comes in all shapes and sizes and can vary from time to time but there is a touchstone so far as Powers of Attorney (PoA) are concerned.

A diagnosis of dementia does not infer that capacity to make a PoA has been lost. When told that someone has lost capacity, the next question should always be – capacity to do what? Even with severe dementia, the capacity to go to the shops and contract to buy your groceries may never be lost. Perhaps entering into a contract for a complex investment trying to be sold by a pushy salesman may be a different matter, however!

What a diagnosis of dementia may well be, however, is a wake-up call to make your PoA as soon as possible, so don’t delay. If there is doubt, ask your doctor beforehand but, if there is no doubt, just go ahead and make one straight away.

The swiftest way to make one in Scotland is at MyScottishAttorney and, as well as lots of free information about PoA’s, there are videos which give the background, there.

You can make one for yourself or for your parents. It is available in your inbox as soon as you have paid and, although you will need a trip to the doctor to have a capacity certificate signed, it is done and dusted without the usual need of, at least, two visits to or by a Solicitor and at a lot less cost.

Bruce de Wert
Scottish Solicitor

 

 

 

 

 

 

 

 

Bruce is a Solicitor who, as Director of the company behind MyScottishAttorney, makes the complicated simple and you can make  a Scottish Will or a Scottish Power of Attorney for yourself or your loved one.

Making a Will by text message in Scotland?

Texting a Will whilst having your coffee and biscuits.

The suggestion is that you could, in the future, make a will by texting, voicemail and email.

It is, just now, England only but, to my mind, not a great idea. I am all for easing Will-making – after all I own MyScottishWill which allows you to make a valid Will at home – but I am not keen on the relaxing of the signing and witnessing arrangements. There is something about that ritual which means that people do not make hasty and unwise decisions.

It also makes it less easy for bad people to strong arm the elderly and vulnerable.  It doesn’t need much imagination  to see what could happen. It happens now with all the checks and balances.

Leaving it to a judge to decide whether it is a valid will is also questionable. In England, there is a whole legal industry of challenging Wills because the law is uncertain as to what you must leave your children. That is not true in Scotland where court fights are rare. The law should be simple and certain. If it has to go to a judge that is potentially very costly and not, I suspect, something that the deceased would have desired.

The making a Will and the reading of it, after a death, is an emotional experience. Let’s not make it harder.

You can make one immediately –  just go to  MyScottishWill

Bruce de Wert
Scottish Solicitor

 

 

Beat the Scottish Power of Attorney registration delays

Bitter family feud over Mum’s houses and her Will

Children can be wicked and I thought my readers may be interested in such a case which has been recently decided in the Court of Session

Lord_Uist

Lord Uist

It involved a vulnerable 80-year-old Mum of three boys, Mrs Audrey Matossian, who was “persuaded” to hand over her three valuable houses to 2 of the brothers. The judge in the case, Lord Uist, said that these sons had a “dominant influence” and “there was an absence of independent advice and assistance.”

Two of the brothers had organised their own Solicitor (that she did not know) and drove their Mum to one of their houses where she met him. They had primed the Solicitor that their mother wanted to hand over the properties and he had prepared the documents ready for her to sign. She did, indeed, sign but, a few days later, she had her own Solicitor draw up a will appointing the third brother as Executor. As the judge said, that showed that she had no real intention of transferring the three properties to the brothers.

Clearly, the two boys cared nothing for their Mum because she ended up with no houses and a large Capital Gains Tax bill.

When Mum died, the executor raised an action asking the judge to “reduce” (reverse) those property transfers and he had very little hesitation in doing so, saying, in legal language, that she was vulnerable and they took advantage of her.

He was, in fact, very critical of all of the brothers who he said had subjected the court to the “undignified spectacle of a family feud”. None of them had backed down and they all wanted their day in court, he said.

Incidentally, the two brothers had the cheek to claim that, even if the judge were to reverse the transfers, they were entitled to compensation for the improvements that they had made to the house. The judge dismissed that, out of hand, saying that they should not gain from their bad intentions.

It goes to show that, sometimes, as Executor, it is worthwhile investigating the circumstances of an earlier transfer if the deceased was vulnerable at the time.

You can read the full judgement as well as a legal news report.

Bruce de Wert cropped.and websizeBruce de Wert

I am a Scottish Solicitor in private practice with over 25 years of experience and have 4 offices at Georgesons and Smiths Grant. As well as the standard legal business model, I also offer Online Divorces and, by a separate limited company, OnlineWills and Powers of Attorney.

If you wish to consult me, please e-mail me at [email protected] in the first instance.

Challenging Wills in Scotland – Part 1 – the basics


Challenging the will In this series of blogs, I shall be dealing with the main issues that I have experienced in dealing with claims on Estates.

That experience is from both sides, acting, on various occasions for the claimant and, on others, for the Executor.

I shall write, later, on the situation where there is no Will at all – or, at least, not one that can be found.

Looking at the big picture, when compared to England, there are few legal challenges to Wills in Scotland. This is because the law lays down strict rules whereby children and spouses, disappointed by the provision (or lack of it) in the Will can claim specific amounts or percentages of the estate of a deceased whereas, in England, the law is judge-made and each case is judged on it’s merits.

That is not to say that the manner of identifying the specific amount is simple. It is apparently so but subject to a number of complex quirks so, sometimes, it is worth challenging what is offered or, at least, having the calculation checked.

Co-habitees, incidentally, are in a special situation with their own rules and I intend to write about that, also.

Most of the cases I have dealt with relate to such claims but there are others where the challenge is much more fundamental and relates to the validity of the Will itself or, where there is no doubt as to its validity, it’s interpretation.

On other occasions, there are challenges to the actions of the Executor in implementing (or failing to implement) the Will of the deceased. Sadly, not everyone acts as they ought and, whilst most challenges succeed because of ignorance of the law (even from some Solicitors as it is complex and specialised), there are dishonest executors out there and even, very sadly (but, thankfully,  very rarely), dishonest Solicitors that need to be brought to book.

More soon.

Bruce de Wert cropped.and websizeBruce de Wert

I am a Scottish Solicitor in private practice with over 25 years of experience and have 4 offices at Georgesons and Smiths Grant. As well as the standard legal business model, I also offer Online Divorces and, by a separate limited company, Online Wills and Powers of Attorney.

If you wish to consult me, please e-mail me at [email protected] in the first instance.

A child’s Will disinheritance dilemma – to claim or not claim…

Bruce de Wert

Bruce de Wert

Sometimes, I see (or I am asked to write) Wills where the parent has fallen out with a child (or vice versa) and, as a result, decided to leave them something but very little compared to the others.

The child is then faced with a dilemma. Should they accept what is in the will or should they claim “legal rights“?

Legal rights can only be money so, if the child has been left some family papers or Grandad’s medals, this can cause a dilemma. Should they take the money or the emotion-laden legacy?

They cannot have both. They must opt for one or the other.

Unfair? Perhaps but the benefit that Scotland has is that the law is clear. In England, there is a whole legal industry dedicated to challenging Wills. If there is financial pain, it is, mercifully, brief in that it does not rumble on in court for years. The emotional pain can remain, of course.

If you find yourself in this situation and wish consult me, as a  Solicitor, please telephone 01955 606060 or 01361  883222, speak to my Secretary  and a telephone appointment will be made for you.

 

Are wills made outside Scotland valid in Scotland?

Bruce de Wert

Bruce de Wert

Wow!  That is a difficult question.  The answer is that it depends!

You know, sometimes things are just complicated. This is one of those occasions.

It depends upon: –

Where the will was made.

When the will was made.

What the circumstances of the will maker were, when the will was made.

What the present intentions of the will maker are, at the moment or, if dead, his or her intentions at the date of death.

If you look at my posts, you will see that, generally, I try to give a cogent answer to the question but this one is far too complicated.

The consequences of getting it wrong are too huge to contemplate trying to guide  you.

This is one occasion where I advise you to obtain legal advice on your particular circumstances or the particular circumstances of the Will maker, before  making decisions based on the Will.

Sorry about that!

Bruce de Wert

 

As well as my online Wills service at www.myscottishwill.co.uk, I am private practice  in Wick  (01955 606060) in the north of Scotland and in Duns  01361 883222 in the south of Scotland.  As well as standard physical appointments, I can take telephone or Skype appointments. Please phone for an appointment.

 

 

 

 

The difference between a Power of Attorney and a Will in Scotland

 

Bruce de Wert

Bruce de Wert

Anyone made the executor of a Scottish will or given a Scottish power of attorney share similar responsibilities to the person appointing them.

They need to do what the granter wants and what is in the granter’s best interests. The difference, however, is that one one takes care of things whilst the granter is living and the other after the grantor has died.

Are there Scottish Power of Attorney forms?

MyScottishAttorneyA comment on this blog from an Irish reader has motivated me to write about the Power of Attorney forms that can be found on the Scottish Office of the Public Guardian website.

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