Personal Law

Have you ever considered what would happen if you were in an accident and could no longer make decisions for yourself? Or if you were diagnosed with a brain disease, such as Alzheimer’s? You would probably expect your husband, wife or civil partner to deal with things for you. Or perhaps your (adult) children, your parent or a sibling because they are your ‘next of kin’? They are your nearest and dearest and know all about you so they are the most obvious choice to be able to deal with matters should you find yourself incapable, whether temporarily or permanently.

Next of kin

Unfortunately, a person you would consider as your ‘next of kin’ does not have a right to deal with matters on your behalf. Many people find themselves in the position that they are unable to access information regarding the assets belonging to a close family member, even in order to keep paying bills and dealing with day to day administration. This means, in addition to dealing with a close relative or friend suffering with a serious illness or injury, family members and friends have the stress of trying to ensure that bills are paid, care is funded and assets are protected.

Life admin

So, what can you do? No-one wants to consider that they may lose capacity at some point. Brain illness and injury is a frightening thought and burying your head in the figurative sand may be extremely attractive. However, if you deal with your ‘life admin’ you will make sure that there are no additional stresses should you become affected.

Power of attorney

In order to ensure that the person you choose is able to deal with your matters if you find yourself unable to do so, you should grant a power of attorney. An attorney is someone (of your choosing) who will deal with your personal affairs. These personal matters are split into two groups: continuing (financial) and welfare (health and wellbeing). You can choose different people to be your continuing attorney and your welfare attorney, if you so wish. You can choose the clauses in your POA ensuring your attorney can deal with your assets and following your wishes regarding your welfare as you would want.

Too late? Guardianships

So, what happens if you leave it too late or a family member needs assistance but hasn’t appointed an attorney? All is not lost. A guardian can be appointed to act on behalf of the incapax adult but this is a time consuming process (usually 6 to 12 months) and can be very costly (although legal aid is available in some circumstances). An application has to be made to the local sheriff court and it must be accompanied with reports from at least two medical practitioners and a mental health officer. In contrast to a power of attorney, which can be used indefinitely, a guardianship is likely to be granted for a specific time, meaning, a further application may well be required. A guardian will also be subject to much greater scrutiny from the OPG and other bodies. Management plans and accounts will be required.

Contact us for advice

The above is a brief overview as to why it is important to ensure your planning is up to date. Appointing an attorney means that the person you have chosen will be able to act on your behalf and, while subject to certain duties as an attorney, will be able to act on your behalf without the scrutiny of the OPG. However, if it is too late to appoint an attorney, other options are available to you and your family members. You can speak to a member of the team by calling 0131 228 3777.

Kathryn Johnston

Senior Solicitor at Brodies LLP
Kathryn is a Senior Solicitor in our Personal & Family team.She has a particular interest in contentious matters, adults with incapacity and succession planning for international high net worth individuals.
Kathryn Johnston

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