“Why you should have a Power of Attorney and a Will – recent Scottish cases”
Two recently decided cases have demonstrated why it is essential to complete a Power of Attorney.
In JM in re Application by Aberdeenshire Council the sister of a man with severe learning difficulties has failed in an appeal against a sheriff’s decision to appoint a local authority’s chief social worker as welfare guardian to her brother. The sister’s complaint was that the mental health officer who prepared a report which favoured the council’s application over hers should not have prepared a report in respect of her own application. The Sheriff Appeal Court rejected the sister’s claim that there was a conflict of interest – perhaps a surprising conclusion – and declined to appoint the sister as guardian, putting the social worker in charge of JM’s affairs.
In J, Solicitor’s Application in respect of FF the Sheriff Principal declined to appoint FF’s solicitor as guardian as not having a sufficient interest the property of FF, observing that it was for the local authority, the mental welfare commission or the public guardian to make an application.
The expense of your family being involved in such expensive Court proceedings (at least £5,000 for a Court appointed guardian) can be avoided, and you will ensure that your wishes will be adhered to, if you appoint people close to you and in whom you have confidence as your attorneys.
Wills are not just for the rich and powerful, though the English case reports have recently been dominated by multi-million disputes over Wills. Regardless of the assets in your estate, a Will can ensure, subject to legal rights some relatives have, that your property, personal belongings and other assets will go to family or the beneficiaries you designate. There can also be other benefits to having a Will, including reducing Inheritance Tax.
Through a Will, you can also decide who will act as executors to ensure that your wishes are carried out. Without a Will, a Court makes these decisions on your behalf, through a lengthy, expensive and often stressful process. This was recently amply demonstrated in the case of ED v MP in Edinburgh Sheriff Court, a dispute between two children about who should be the executor. At the end of his judgement the Sheriff gave this pithy observation:-
“Finally, the parties’ mother, EP, died (without a Will) on 2 January 2013. She left five children/beneficiaries and an estate of £33,000. Thus far this estate has resulted in litigation at Glasgow Sheriff Court, a subsequent appeal to the sheriff principal and two actions proceeding in Wick Sheriff Court leaving aside this matter before me. I say no more.”
Posted on 21st October 2016