Legal and practical issues

It’s normal to want to think about what will happen after your death. It's not morbid, making a will is a thoughtful and effective way of taking care of the people you love. A will allows for the transfer of your possessions to people of your choice but it is much more than that.

In a will the person making the will (called the testator) states who is to be responsible for putting the will into action after the death. The person or persons appointed are called ‘executor’. Winding up an estate is an intimate process and choosing an appropriate executor is important to many people. A will may also contain directions as to guardianship of children and other matters such as funeral directions which are very important to some people. A well written will can spare families painful decisions, arguments, bureaucratic hassles and costs.

Conversely if someone dies without making a will the person is said to have died ‘intestate’ - then the law of intestate succession comes into effect. That law states who inherits the possessions of the deceased and who is entitled to apply to be appointed executor. The people inheriting the property and winding up the estate may not always be the people the deceased would have chosen – there is a complex order of succession. This order of succession gives precedence to any surviving spouse and children but there are financial limits on inheritances which can produce unusual results. For example a surviving spouse is entitled to inherit a matrimonial home only up to a certain value. Over that value and there is not an automatic right that the spouse has to inherit it. Blood and marriage ties are recognised before non formal relationships. In these days of informal relationships and more fluid family arrangements many feel the current law of intestate succession is somewhat rigid and out of date. Certainly it is generally much better for families if a will is in place. For many, putting their affairs in order clears their minds of worry and can bring a deep sense of satisfaction. This can leave the individual free to enjoy the present time.

Making a will is nothing like as expensive or difficult as many might think, but it is a legal document and must be properly prepared. It is usually best to use a solicitor who will be able to draft the will making sure wishes are clearly and validly expressed. All solicitors will quote costs prior to carrying out work the completion of most wills will not involve more than a couple of consultations with a solicitor.

Where a solicitor drafts a will for someone the firm will normally store the document for the testator and provide the testator with a copy. The testator should store that document with other personal papers.

Age Scotland has a fact sheet Making your will (PDF, 888 KB) specifically for people in Scotland who want to make a will.

Funding is available for a solicitor to help you prepare a will under the Civil Advice and Assistance Scheme. You can find out if you’re likely to be eligible by checking the Scottish Legal Aid Board’s eligibility estimator.

Further information about making a will in Scotland:

• Law Society of Scotland: Making a will
• Citizen’s Advice Scotland: Wills

You can give someone you trust the authority to deal with certain aspects of your affairs in case you become unable to manage your affairs yourself.

You can choose exactly what powers you want to grant, whether relating to your financial and property matters, or your personal welfare.

• These are formal legal documents
• In them you appoint someone to act for you if you lose capacity
• You can only complete one if you have legal capacity
• The person you appoint is your "Attorney"
• You can appoint more than one Attorney
• The Attorney's legal powers are set out in the document
• Powers are categorised as "legal and financial" or "welfare"
• There can be different Attorneys for different categories of powers
• People usually appoint their partners and adult children as Attorneys
• All Powers of Attorney must be registered with the Public Guardian
• Attorneys can only act for the benefit of the person appointing them
• Attorneys are subject to a legal control framework
• Their powers can be removed if used improperly
• All adults should complete Powers of Attorney
• Court actions can be avoided if Powers of Attorney are in place
• You can cancel or revoke your Power of Attorney
• Many pensioners can get legal aid for Powers of Attorney
• You cannot appoint a bankrupt as your Power of Attorney

Many people qualify for help with the costs involved in making a will, completing an advance directive or granting a power of attorney. Further information about this is available from the Scottish Legal Aid Board website or by calling the Legal Aid Helpline on 0845 122 8686.

More information about Power of Attorney is available from Citizen's Advice Scotland and on the website of the Office of the Public Guardian.

The Adults with Incapacity (Scotland) Act (2000) is the cornerstone of the law of incapacity in Scotland. It provides a coherent code of dealing with incapacity on an anticipatory or responsive basis. The act delineates roles and functions for a number of third parties such as the courts, the Office of the Public Guardian, and the local authorities all of which have a part to play in incapacity law.

Generally the Act seeks to recognise incapacity and provide a framework of law and practice which seeks to limit the disadvantages of incapacity and to protect the vulnerable. The Act sets out five governing principles which are:

1. There must be no intervention unless for the benefit of the adult - “adult” being the name used for the incapacitated person in the Act
2. Any intervention must be the least restrictive option in relation to the freedom of the adult
3. Account must be taken of the present and past wishes of the adult
4. Account must be take of the views of others e.g. the nearest relative or primary carer
5. Agencies must encourage the adult to exercise whatever skills he or she has with respect to property etc.

The legal state of ‘incapacity’ arises when a person becomes unable to make their own decisions. The Adults with Incapacity (Scotland) Act (2000) recognises incapacity and provides a framework of law and practice designed to limit the disadvantages of incapacity and to protect the vulnerable.

Guardianship Orders and Intervention Orders

If you become incapacitated and haven’t previously granted a Power of Attorney, it may be necessary for someone close to you to apply to court for an Intervention Order or Guardianship Order so they can deal with your affairs on your behalf.

An Intervention Order deals with a specific issue – such as for example applying to court to sell a person’s house to raise funds.

A Guardianship Order is appropriate if long term and continuing management of a person’s affairs is needed. It will depend on the circumstances of the person with incapacity as to which order should be sought.

Powers in Guardianship Orders

Someone applying to the court to become a guardian will have to state in the application to the court what powers he or she wishes granted and why they should be granted. There are two broad categories of powers which can be sought:

• property and financial powers
• welfare powers

In simple terms property and financial powers apply to whatever the incapacitated person owns and receives and has to pay. Welfare powers apply much more to personal issues such as where the adult should stay, what activities the adult should indulge in and what day to day decisions on dress diet, healthcare and so on need to be made.

Applying for a Guardianship Order or Intervention Order can be a lengthy process, so it's much better to grant a Power of Attorney in advance if you can. This also makes life easier for your friends and family at a particularly distressing time.

You may decide to express a very specific view about a particular medical treatment which you don't want to have.

An Advance Directive is a written statement, drawn up and signed by you, which sets out how you would prefer to be treated (or not treated) in the last stages of your life.

Making an Advance Directive and communicating it to your loved ones and medical staff is very important. Not only should it help you to receive the end of life treatment you wish, it also enables you to give clear guidance to people close to you about your wishes. Ensuring your loved ones and doctors know of the existence of your Advance Directive is vital. Normally the principal document should be sent to be held with your medical records, with a copy being shown to those closest to you, preferably your appointed welfare attorney.

Preparing an Advance Directive removes a great burden on others who may be asked to make crucial medical decisions about you. Letting them know your wishes in advance gives them the confidence to make the decisions you would have wanted, and reduces the chances of your loved ones being haunted by guilt and worry that they have not done the right thing.

Many people qualify for help with the costs involved in making a will, completing an Advance Directive or granting a Power of Attorney. Further information about this is available from the Scottish Legal Aid Board website.