What are ‘Legal Rights’ in Scotland?

Posted on By Louise Polcaro
legal rights,family,inheritance

Legal Rights are a distinctive feature of Scots Law, protecting certain family members from disinheritance. They entitle a spouse or civil partner and any children (or the descendants of a predeceasing child) to claim a portion of a deceased person’s estate, even if the deceased left a will leaving nothing to them. Legal Rights apply automatically, without a claim to the court having to be made.

Cohabitees do not have an entitlement to Legal Rights. Under certain circumstances, a surviving cohabitee can raise an action through the courts, but this is not an automatic right.

How much can be claimed?

The value of a Legal Rights claim is calculated by reference to the value of the net ‘moveable property’ in the deceased’s estate. Broadly, moveable property comprises any assets that are not land or buildings. Any debts and certain expenses (such as inheritance tax and funeral costs) are deducted to leave the net value.

The value of the Legal Rights claim depends on whether the deceased left:

  • a surviving spouse or civil partner and children;
  • a surviving spouse or civil partner alone; or
  • children alone.

A widow, widower or surviving civil partner can claim one-third of the deceased’s moveable estate if there are also surviving children, or one-half if there are not.  Surviving children are entitled to one-third of the moveable estate, equally between them, if there is a surviving spouse or civil partner. This increases to one-half if there is no surviving spouse or civil partner.

A child’s entitlement is not increased by his or her siblings choosing not to claim their respective shares. For example, if two surviving children are collectively entitled to a third of the net moveable estate, each child would be entitled to one-sixth. If only one child wishes to claim Legal Rights, the claim remains one sixth – it is not increased to a third as a result of the other child deciding not to make a claim.

If a family member is also a beneficiary under the will, he or she must choose to claim either his or her entitlement under the will, or Legal Rights. It is not possible to claim both Legal Rights and an entitlement under the will.

What happens if someone does not wish to claim their Legal Rights?

There is no obligation to claim Legal Rights. Anyone who is entitled to Legal Rights may renounce them at any time – either before or after the death of the person in whose estate they have the entitlement.

Asking relatives to renounce their Legal Rights during your lifetime can be a useful estate planning tool. However, a person can never be forced to give up their entitlement, nor can they be paid to do so.

If you are concerned about Legal Rights being claimed on your estate, or if you would like more information on making a claim, it is important that you seek the advice of a qualified advisor.

Kirsten Anderson TEP is a Partner in the private client team at Stronachs, Aberdeen, Scotland

Who should I choose to be my attorney?

Posted on By Louise Polcaro
capacity,attorney

No one knows what’s going to happen in the future, and it can be reassuring to plan ahead to make provision for yourself and your family if anything were to happen to you. Making a will is a useful first step, but you may also consider making a power of attorney in case at any point you become incapable of managing your own affairs through age, illness or accident. In England and Wales, a Lasting Power of Attorney (LPA) enables you to appoint a trusted individual or individuals who, in the event of your loss of capacity, would be responsible for, and would have the legal authority to make, decisions in relation to your property and finances and/or your health and welfare.

Types of Lasting Power of Attorney

In England and Wales there are two types of LPA – Property and Financial Affairs and Health and Welfare – and you can appoint an attorney for either one or both of these.

With a Property and Financial Affairs LPA, your attorney will be responsible for all your financial affairs. This means looking after your money and making sure all your bills are paid. They will be responsible for your investments, property, money and other assets.

With a Health and Welfare LPA, your attorney will be responsible for your welfare. This means looking after your health, personal care, wellbeing and quality of life. They will be responsible for your accommodation and your physical and mental welfare and will be able to make choices about where you live, whether you should receive a particular healthcare treatment, and day-to-day things like diet, dress and daily routine.

Who should I choose?

With such important responsibilities, it is vital to consider your choice of attorney very carefully.

Your attorney must be at least 18 years old and can be a family member, spouse/partner or friend. Alternatively (or additionally) you can engage a qualified professional such as a solicitor to act as your attorney.

Some key considerations are as follows:

  • Can you trust them to act in your best interests?
  • How well do they know you? Do they understand your wishes and values?
  • Are they capable? (How well do they look after their own affairs?)
  • Do they understand the responsibility of the role?

You should discuss the various responsibilities with your chosen attorney to make sure they understand what you are asking of them and they are happy to be appointed.

Can I choose more than one attorney?

Being an attorney can involve making some difficult decisions and may be quite time consuming so you may wish to appoint more than one attorney to spread the responsibility. If you choose to appoint more than one attorney, you need to decide whether you want each individual attorney to have the power to act separately (make decisions on their own) or jointly (where all of your attorneys have to agree on a decision).

You can also nominate other people to replace your attorney or attorneys if at some point they can’t act on your behalf anymore.

Where can I get more information?

You can find out more about LPAs in our leaflet, Why Make a Lasting Power of Attorney? You may wish to discuss your requirements with a qualified professional, who can talk you through the various considerations.

You can also find extensive information about how to make and register an LPA in this guide, produced by the Office of the Public Guardian.

Powers of attorney in Scotland

Posted on By Joanna Pegum
golfers in Scotland

A power of attorney is a legal document appointing trusted persons (attorneys) to make decisions on your behalf. Provisions for powers of attorney vary across the UK. This article considers the options available in Scotland.

Why have a power of attorney?

While it is difficult to contemplate becoming unable to make your own make decisions, an estimated 100,000 Scottish adults have significantly impaired legal capacity. A power of attorney allows you to choose trusted family, friends or professional advisors to take care of your business and personal finances and your personal welfare should you become unable to do so yourself.

Types of powers of attorney

Continuing powers of attorney deal with your financial affairs, eg your bank accounts, investments and business interests. These documents ‘continue’ in force in the event that you become incapable and come into force once registered (see below).

Welfare powers of attorney only take effect if you become incapable as a result of mental incapacity. They empower your attorneys to make decisions regarding your personal welfare, for example where you will live, arrangements regarding your personal care and deciding which activities you should engage in.

Welfare attorneys can also be given the power to make decisions about medical treatment.

Most Scottish powers of attorney contain both types of powers and are referred to as ‘continuing and welfare powers of attorney’.

How to grant a continuing and welfare power of attorney

A solicitor can assist you to put in place a power of attorney. After reviewing a draft, you will need to meet with your solicitor or doctor to have the document signed. A certificate requires to be signed by the solicitor or doctor to confirm that you understand the terms of the document and are not being put under any pressure to sign it.

As your attorneys will be under various duties, your solicitor will contact your attorneys to confirm they are happy to act in this role. These duties are set out in the Office of the Public Guardian’s (OPG) Code of Conduct. The Public Guardian is an officer of the court who has certain supervisory functions.

Your power of attorney will then be sent to the OPG for registration. The registration process takes a number of weeks but can be fast tracked if necessary.

Choosing your attorneys

Your attorneys will have wide-ranging powers so it is important that you choose people you trust, who understand your needs. You may wish to consider appointing a professional attorney.

It is also possible to appoint substitute attorneys, who will act only if your principal attorney is unable to do so.

What happens if there is no power of attorney?

If a person loses capacity before granting a power of attorney, there are other legal mechanisms available to deal with decision making, eg applying to the court for a guardianship or intervention order. However, these procedures can be expensive, slow and cumbersome. Above all, they do not allow you to choose who will act on your behalf.

A power of attorney is therefore the simplest, cheapest and most flexible option.

Karen Oliver TEP is an Associate at Stronachs LLP in Aberdeen, Scotland, UK