Today was the 7th Annual Care of Older People in Scotland Conference, and we heard from a wide variety of speakers, all clearly passionate about improving the quality of life and standard of care for Scotland's older population. There was a shared commitment to creating more inclusive communities and ensuring that the voices of older people are heard. As I reflect on this key message, I think about my own day to day work as a private client solicitor, and the role that I can play in fostering a culture of empowerment for older people.

Whilst the conference focused more on aspects directly affecting those on the front line of providing care to older people, key themes were raised that are relevant to us endeavouring to provide tailored legal services to our older clients.

In particular, the following themes were identified as being areas of concern to Scotland's older people. These themes and others are investigated in more detail in "A Good Life in Later Years" report - an enlightening research project by older people for older people:

  • Independence and choice - individuals were keen to ensure that their autonomy is respected in their later years, and their voices are heard;
  • Relationships - individuals were concerned about how they would forge new relationships on the death or severe illness of their friends or loved ones, wanted to be included in activities of interest to them, and still be seen as part of the family/peer groups;
  • Housing - many individuals were keen to stay in their own home for a long as possible, and if required, receive care at home rather than in a care home. There was a feeling that whilst the government was trying to encourage this, assistance or services in this regard were not easily accessible or available;
  • Preparing for the end of life - the report highlighted that many individuals did not have there are affairs in order and were not prepared for death or possible complications in later life, despite this being a concern and resources being available.

Considering the above matters of concern to older people brings into sharp focus, I think, the importance of putting wills and powers of attorney in place, and I ponder on how putting your affairs in order could alleviate some of the above concerns, and give you peace of mind.

The nitty gritty

A power of attorney is a document which allows you to choose who can make decisions for you if you are unable to make decisions for yourself. You choose who your attorney or attorneys will be, and you choose which powers to grant them. These powers are generally wide ranging and will cover financial/legal matters and welfare matters - including some of the themes mentioned above such as the power to decide where you live, who you associate with, medical treatment etc. This can even be supplemented by a letter of wishes, recording your preferences about various aspects of your life and serving as guidance to your attorneys on how you would like them to exercise their powers. For example, you may wish to record that you would like your hair to be done weekly and for your attorney to make these arrangements, should you lose capacity to do so yourself, or that if you ended up in a care home you would still like your pets to be able to visit you, or that you would want to receive care at home in the first instance for as long as practical. This is a very personal document so can cover any matters which are important to you.

Additionally, you may wish to consider putting an advance directive (aka "a living will") in place. An advance directive is a statement of your wishes as to what treatment should or should not be given to you in certain circumstances. It would usually indicate that your life is not to be artificially prolonged if you are unconscious or there is no reasonable prospect of recovery. This can be a help to doctors or to your welfare attorneys in deciding what to do in specific circumstances, and serves as a helpful record of what you would have wanted if you were able to make the decision yourself, and helps others respect your wishes. It can also remove the burden on others who may be asked to make crucial medical decisions about you, and reduces the chances of your loved ones worrying that they have not done the right thing, and avoid disagreements within your family about your care and treatment. This can be a standalone document, or incorporated into the power of attorney document.

Further, having a will allows you to control how your estate is distributed on your death. Conversely, if you die without a will (known as dying "intestate"), there is a default law which kicks that determines how your estate is distributed, meaning that those closest to you may get nothing and those you did not wish to benefit may get it all. Family structures have changed greatly since the laws on intestacy were established in 1964, and it is possible that this default distribution will not accord with your wishes. Having a will also gives you to opportunity to decide who should be responsible for administering your estate and making important decisions once you are gone. Additionally, it can also be a helpful place to record your funeral instructions, should you have specific wishes, and make a declaration as to who should be responsible for such arrangements.

We can help!

We have said it time and time again and the message will not change - early planning can make all the difference in giving you peace of mind and making sure your wishes are known, especially should there come a time when you are not able to make decisions for yourself.

We understand that talking about death and planning for it can be an uncomfortable topic for many - but it really can be straight forward to put your affairs in order. Here at Brodies, we have a wealth of experience in supporting older and vulnerable people and their families. We can help you with all aspects of planning for the future, including making a will, preparing a power of attorney, advance directives, tax planning, asset preservation and paying for care, and do so in a sensitive, holistic way.

You can speak to your usual Brodies contact about helping you plan for later in life and helping you support your loved ones.


Stacey Gourley