Personal Law

You may have seen the ITV Tonight programme – Elderly Theft: Robbing the Relatives last week. The programme focused on a number of examples of relatives effectively stealing from elderly people without their consent. The examples were of course shocking – but it is important to consider the bigger picture and what are the alternatives to a power of attorney.

Scottish powers of attorney

In Scotland we have a completely different legal system governing the issue of Adults with Incapacity. The system highlighted in the programme was the English one. In Scotland a power of attorney is signed by way of a deed. The deed requires a certificate which is signed by either a solicitor or a doctor. The certificate confirms that the adult understands what they are signing and are not under any undue influence to sign. The solicitor will guide you through the process and explain the different powers that can be included both in terms of financial and welfare powers.

Who to appoint

It is of course of vital importance to appoint as your attorneys those that you trust. It may give you more peace of mind to appoint more than one attorney. On the other hand, it is important to consider how individuals will get along – for example if you have children who don’t work well together then you may wish to think about how this would work in practice.

What if you don’t have a power of attorney?

The programme highlighted that some elderly people want to live in the here and now and don’t like to think about the future. This is perfectly understandable but it is important to consider that putting a power of attorney in place now could save a lot of worry, hassle and expense in the future. The alternative to a power of attorney if this has not been executed when an individual has capacity is guardianship. My colleague Gillian Wilson recently wrote a blog on how guardianships work. As well as the expense of guardianship applications and the ongoing administration the guardianship process also means that you as an individual are not choosing who you appoint – this is ultimately decided by the Court.

We advise that everybody gets a power of attorney in place and that this is reviewed on a regular basis to ensure it reflects current wishes. Having documentation in place now could save your relatives a lot of worry and expense in the future at a time when they may have a significant amount to deal with. You will have the peace of mind knowing that your affairs are in the safe hands of those you have entrusted.

Susanne Batchelor

Susanne Batchelor

Partner at Brodies LLP
Susanne is a Partner specialising in private client work, an area to which she is dedicated and thoroughly enjoys. She advises on a variety of asset protection matters including wills, estate and succession planning, inheritance tax advice, formation, guardianship and intervention orders, planning for nursing home care costs and the administration of executries.
Susanne Batchelor