Q&A: Wills and Power of Attorney

At Thomas Bradley & Co, the focus is on how we can make sure your needs and provided for with care and skill. From the purchase of a home to assisting you in times of loss, we are here to provide guidance and expertise every step of the way. Hopefully you will find this Q&A helpful.

Do I have to act as an Executor if I’ve been named as one in a Will? If you have been named as an Executor for someone who has passed away but do not want to act, you can resign; If doing so will leave the estate without an Executor, you will need to appoint someone else first (such as a relative or a legal firm) and then resign. If you have been named as Executor by someone who is still with you, then you should speak to them about having their will changed.

What does it mean to be an Attorney? If you have been named as an Attorney in a Power of Attorney, that means that you may be responsible for taking care of a person’s financial or personal affairs (or both!) if that person loses the ability to look after them themselves. You will need to act reasonably and in terms of the Power of Attorney document, and you will have the authority to act on behalf of that person as if your actions were their own. Guidance on how to use the powers can be found by speaking with a legal firm or talking with The Office of the Public Guardian, who govern Power of Attorney in Scotland.

Can I write my own will? You can certainly write your own will if you want to, however you need to be careful to ensure that your Will is detailed enough to avoid any accidental intestacy (lack of a will) should someone you name in it pass away, you must make sure that it accounts for the rights of those who survive you, and you need to make sure it is signed and witnessed properly. It is always recommended that you speak with a professional about having a will made or that you have your existing will reviewed if you are at all unsure.

Do I have to leave everything to my spouse? It’s very common when putting a will into place to name your spouse as a beneficiary of the whole of your estate – in fact it’s common enough that people might be mistaken and think that this is something that you have to do, but you don’t! In your will you can name anyone you like as your beneficiaries, but you must keep in mind that your spouse may be entitled to claim up to a half of your moveable estate regardless of your Will as their Legal Right under Scottish law.

What kind of powers can I give my Power of Attorney? In Scotland, Power of Attorney can be wide ranging but generally are split into two kinds of powers – Continuing Powers and Welfare Powers. Continuing Powers cover the ability to look after a vulnerable person’s financial and business affairs, and cover things from simple transactions like paying bills or going to the bank, to more complex matters like appointing financial advisors or organising the sale of a property. Welfare powers look after the day to day welfare of a person – with Welfare powers, you look after personal care and medical decisions of a vulnerable person, for instance choosing holidays or excursions, or making medical decisions on their behalf.