Grown Up Stuff: (Free) Wills & (even more important) Power of Attorney

27:06I was going to ask that. Listening to what you said, what I when we've spoken in the past is basically it's very difficult if you're trying to protect your house from being used to be treated towards a care home. I mean, it's just a tough thing to do. What interested me there is you said if you live long enough. So Anne is 62. Let's imagine she gave away her house now to her children. She gave it away without reservation so that they could use it. she's not living in it anymore or if she is she's paying them a commercial rent to live in it which you'd have to do i presume and she lives another 20 years right or it's 20 years rather before she goes into the care home yes would time make a difference and and what how long is how long does it need to be right it does make a difference some people have in their mind the seven years and they're mixing up the inheritance tax uh period with with this uh sort of care cost thing if i I mean, the broad answer is if as a matter of family and and kind of general planning and organisation, you are saying, right, I've got this property.

28:12I want my children to benefit from the value of it. I'm going to transfer it to them. And I have no thought whatsoever of care costs. I am healthy, fit. I might even still be working. I'm not anywhere near going to care home, but I no longer wish to have this value. I wish to pass it on. And then years later, and I'm not going to say how many years later because there isn't a specific number, years later, your circumstances change, your health deteriorates. And when the council come to assess you, you say, well, at the time that I transferred this property, I was in good health. I was financially sound.

28:47I was not doing it for the purpose of avoiding care cost assessment. And if you can stand that up, as it were, then you will be successful with that. If you are concocting a false narrative. Well, the fact she's asking the question almost defeats it, doesn't it? In a way. Yes and no. I think it's a perfectly legitimate way to phrase the question. But that is that there's a kind of thread of risk going through the whole thing. But if a solicitor listening to that question says, right, I understand that question. Here's the answer to it. Let me ask you some other questions. What is your health? What is your general financial position?

29:32Are you working? What are your financial plans ahead in the next few years? When do you intend to retire? What family do you have? What is their financial position? You know, what aspirations have you had and do you have now for passing on wealth? So it may be that there is a perfectly reasonable overall case to be made that says do this now and your risks of falling foul of assessment at a much later point are much less. I will never say they're not, they're nil and I will always. I'm going to push on, forgive me, because I want to do the same in England. We had a question from Angela, which was questions around will versus trust.

30:13Why would someone put their house into a trust rather than leave it in a will if they wanted to go to their children? I presume this is some kind of tactic to avoid care fees and means the house could never be used as collateral, thus leaving the child inheritance protected, unlike a will. I mean, is your answer it's virtually the same as in Scotland, as we've just heard, Melinda? Yeah, it is in short, more or less exactly how Austin explained it there. it does depend again on the the value in terms of if people are thinking of inheritance tax but very often they're thinking about care home fees as you as you've mentioned I would actually just flag something I know you carefully mentioned England versus Scotland there but whereas we normally and refer to the law in England and Wales in fact just to throw a further spanner in the work when we're talking about health and social care which is where paying for care homes fits in the law in Wales is actually different than England.

31:11Right, OK. So Wales have delegated powers in terms of certain types of law and health and social care is one of them. So I can't say to you that the same would apply in Wales. OK, so to be clear, the law, when we're talking about wills and power of attorney, that is England and Wales as one unit, but when we go to health and social care, so specifically care home fees and the attitudes of your local council to a care home, that is devolved separately between England and Wales. Exactly right, Martin, yes. OK, I'm going to move on to the next question. And sorry, it means people are going to have to do some more research, but at least you know you need to research it specifically.

31:50The next question, Claire, Melinda, we'll do this to you. Can someone be appointed executor of a will without their permission or knowledge? What happens then if they don't wish to take on that responsibility? Yes, I mean, effectively, someone goes along and makes a will and the executor doesn't necessarily know that they have appointed them the executor. Obviously, it's not the most sensible thing to do because if you want them to be the executor, then you're going to want them to do it. So it makes sense really to ask them that. But if it comes along and then you then die and this person is suddenly greeted with the news that they're going to be the executor and they really don't want to do it, yeah they can renounce and step down from being the executor and what happens then is there's a series of rules as to who can be the executor instead in order to put effect to the wording of the will so the primary people that can step in are those who are what's called the residuary beneficiaries so let's say the will says you know i leave ten thousand pounds to these five different people and then I leave everything else to X.

32:59X is the first person that can make the application to be the executor. Then if they don't want to, it goes through various other set of orders until you end up with an executor, hopefully. And I presume the most common situation where this happens is where the executor has died and so the executor isn't in place. That would be more likely than them not wanting to do it, wouldn't it? That means more likely, but then again, it makes sense to appoint an alternative executor in your will. How many would you normally do? Two? You could appoint two executors and, you know, therefore the surviving one can act, or you can appoint, if this person dies, then I appoint this other person to be my executor.

33:38That's often what is done to ensure that you don't end up with a bit of a mess on your hands. And, Austin, I'm hoping the answer is a simple yes. Is it the same in Scotland? More or less yes. We'll take it. We'll take it. Caroline is in Wales, says, can I use a DIY will kit? No kids, leaving it to my brother. Under the inheritance tax limits, I plan on spending most of my money. So the first thing I'd say, Caroline, is better than the DIY kit. If you rewind back the podcast to the three will schemes I mentioned, well, you're doing it DIY to keep the cost down. That's one way. There are also halfway houses like Witch Wills, which are similar to the Octopus Legacy scheme, where they will have someone drafted and solicitor checked.

34:23I mean, I heard a deep sigh, you don't like, clearly we've got solicitors there, you don't like DIY will kits, but this is really simple. Surely this one isn't too bad? There's no such thing as a simple will, I'll be honest, in Scotland at least, because it's that thing about being a little bit pregnant. Once you go down the road of creating a will, Have you used the right words? Have you signed it in the right place? I mean, in Scotland, the question of where you sign a will and how many pages it's got and so forth can nullify a will. Have you in the will appointed an executor or have you just done a one-line saying, I leave everything to Jimmy, which may be a valid will, but if you haven't appointed an executor, then going back to the last question, somebody's then got to apply to the court to be appointed executive for this allegedly simple will and you're already adding at least hundreds of pounds to the the costs uh it they're just the the idea that there is a simple will is an absolute mistake i'm all for people doing the free will service for goodness sake that's great but don't think of a will as a simple document it's not so if you use it so if someone me to do a DIY will on a DIY kit and all they want to do is I leave everything to my brother and my brother is my executor.

35:49How difficult is that? That is valid but I'll tell you what one big problem is in either online or the old you know published DIY wills you get the stationers. People in Scotland forget and don't realise that they are domiciled in Scotland and they use an english um document which can lead to all sorts of other problems it's just not worth it most will that i dealt with um so i can i i mean i think i slightly differ to you austin in the sense that i do think if a will can be a simple will it could appoint one person executor and the sole beneficiary however the crucial thing about the will is the way in which it is written out to make sure the words are exactly as they should be and that might sound simple but actually it's not always and then the way in which it's signed in the presence of witness who must be in the presence of each other and who must do it in a certain way again sounds simple but the number of times we've seen that not being done correctly which just means the will is invalid or could be valid could not be valid and I once dealt with a homemade will where the person had written it all out beautifully had it signed and witnessed but forgot to put the name of the beneficiary in it they said i leave all my estate to and there was a gap and they'd appointed an executor they'd signed and witnessed it and then just had missed off the name like we all make careless mistakes sometimes so i think if i'm honest with you for the cost of a will it is really worth getting the advice and getting it done properly.

37:30We'll move on to Carol now. If a widow remarries, can she specify in her will that her estate must go to her children and not to her new spouse? Well, that's surely the point of a will, I would have thought, isn't it, Melinda? Yes, exactly right. You can put in your will what you want and you can put that. That's not to say that the new husband wouldn't be able to say, well, where am I going to live then? But that's a whole different story. You can make your will as you want. Let me step this up a second. Could Carol leave everything to her new husband in her lifetime, but then specify in her will that the money that was passed on must then go to her children?

38:09Yes. And it's very common in second or third or subsequent marriages to do that. And that's legally binding. So I'm going to leave you half a million pounds in the house and everything. But when you die, you must leave this to my children. And that's and that's not challengeable. and the new spouse couldn't then do a different thing in their will? Well, when you say it's not challengeable... OK, everything's challengeable. Everything's challengeable. It's difficult to challenge. It's a standard thing to do. It makes sense. And quite often, both spouses want to do the same thing anyway. Yeah, no, but that's where I'm pressing.

38:45If you're not sure about, you know, you've got to dodge your new spouse. You've got them because they're really hot and you like them, but you're not quite sure they're morally with you. And so you think, all right, you know, we've had a great time together. I want to leave my money to them in my lifetime, but I don't want them to screw over my children for their children from their previous marriage. That's what I'm thinking here. How watertight is the ability to be able to do that? Yeah, very much so. It's exactly the normal will that you should do. It sort of makes the best thing to do is to let them know that as well.

39:16Perhaps they might not hang around, but then you'd learn quick enough about that. But it's quite good to have openness as to what would happen if one of you died when you're in that situation. Austin, I'm hoping that's the same in Scotland and it doesn't deviate too much. Broadly, yes. But here's a hint. Make somebody else the executor and not the new husband. OK, that does make sense. Yes, perfect. I presume that would work in England, too. I have one last question, which sort of makes me smile, that came in by text during the show on this before we finish on Wills. It's from Richard. He says...

39:49I made a will with my spouse 20 plus years ago in Scotland. We now live in England and our son is still in Scotland. Should we urgently update or get a new will or will it still be valid? So this is one I think you both need to answer together. Made the will in Scotland, now lives in England. Whose law trumps whom? There's not such thing as a trump. It really depends where they're domiciled and where the assets are. I'm not sure you can say in this moment there's no such thing as a trump, but carry on. Fake news. That's fake news, Melinda. That's fake news. Anyway, yes. Well, as President Trump, of course, is not quite a domiciled Scot, he's one generation away from being a domiciled Scots person to his mother.

40:34Actually, I've had plenty of cases where people have moved north and south of the border. And sometimes an English will is perfectly acceptable in a Scottish court. sometimes you need an an opinion from an English solicitor that the that the will conforms to the laws of England and thereby it is acceptable in the courts of Scotland I'm guessing a sensible thing though is if it's a 20 year old will it's probably and you've moved between different UK nations it's probably simpler to go and get a new English will at this point isn't it yes Yes. Yeah. And the same applies to powers of attorney, I'm sorry to say.

41:16If you've made one in Scotland, you very probably will need to make one in England. And actually wider, I presume, as well. If you were to move outside the UK, you can't assume that your UK power of attorney would still continue to apply and be relevant, could you? It very likely won't be relevant. OK, well, that is a good way, I think, to move on now. Now, at this point, I need to sneak back into the studio with Adrian to do a quick mastermind on the radio. I say sneak back into the studio, I'm staying in the same place. We're operating from two virtual studios, one with producer Matt in doing the podcast and one with the five live team in with Adrian and his crew.

41:52So my sneaking back in means somebody's just pressing a button. You've probably heard too much of this already. We'll be coming back to more on Power of Attorney in a moment. For now, play the Mastermind theme tune.

42:07Adrian, this is Money Mastermind and your score is balanced on a razor's edge. You have 11 right and 22 wrong in our three option multiple choice, which means you are exactly the same as a monkey picking hairs out of its nose to decide which option it would choose. You are Mr. Random Chance. Let's see if we can improve that today. Are you ready? I'm ready. Ladies and gentlemen, Adrian has joined a gym. It's a brave move. The first thing the instructor asked was, what's your fitness goal? Adrian's response, to get out of here without anyone seeing me in lycra. He's paying£25 a month. That's the joining fee.

42:45There's a FOB fee. And he's a little worried now that he's also signed up to lease a treadmill. In a state of panic, he's convinced this is a dodgy finance deal. He's got to do 10 burpees a week and a balloon payment in 2035. So when he gets home, he's started to check his credit file more than he checks the West Brom score. The question today, Adrian, does the fact you check your credit file go on your credit file a yes and it can impact your ability to get credit in future b yes but it doesn't impact your ability to get credit in future or c no it doesn't go in your credit file um so you understand does you checking and going to look at your credit file.

43:34Yeah. And just remind us how you do check. Go online to Experian, Equifax or TransUnion or you can go to other sites that offer their credit files for free and you look at your details. It gives you all the details of which companies you have deals with or have you been making repayments on time and all the other stuff that the credit reference agencies have information about you. And that's what you've gone online to check. So in your case of your dodgy gym deal, you're seeing did you really sign up for a finance deal just to lease a treadmill that's what you've gone on to check to see if it started appearing i'm going to give you a no see i i i surely is nothing sacrosanct just a few moments with your credit rating seeing what it is can can you not be left alone just to enjoy it in peace and privacy so your answer final answer is the fact that you have checked your credit file does not go on your credit file play the uh-uh yeah i'm afraid that's wrong.

44:29The fact you check your credit file does go on your credit file. So what we are left is, does it affect your ability to get credit or it doesn't affect your ability to get credit? The good news is the correct answer is checking your credit file does go on the file. It is recorded, but it doesn't impact your ability to get credit. And there's a crucial distinction in what goes on your file between what is called a soft search and a hard search. Soft search are things that go on your file but lenders cannot include when they're assessing your future ability to get credit checking your credit file is one using an eligibility calculator is one using some indicative offers on loans is another and a hard search which is a proper application and that especially lots of in the short space of time can diminish your ability to get credit in future and when you look on your credit file they will be split up between soft searches and hard searches now let's move on to a lasting power of attorney i've already explained that in my view it's probably even more important than getting a will this is where if you were to lose your faculties many people assume that their relatives could walk into the bank and access your money for you they can't not even to pay for your care or the mortgage and that's what a lasting power of attorney from this point on we're just going to call it power of attorney although there are also short-term power of attorneys.

45:52That's what a lasting power of attorney is there to fix. And this isn't trivial. I mean, if you lose your faculties, there are big questions left. Who will look after you? Who can access your funds to pay for necessities? Who will ensure your money is still working for you if you're no longer capable of doing it? If you don't have a power of attorney, they will need to apply to take care of your finances via the Court of Protection or the Sheriff Court in Scotland or the Office of Care and Protection in Northern Ireland. but they're all roughly similar in the big picture context. That is often difficult, costly, and takes a long time, leaving the situation in limbo in the meantime.

46:32Now, you may be sitting there thinking losing your faculties is something that just happens to the elderly. It isn't. Accidents, stroke, early onset dementia may hit anyone and more. And younger people, the way that finances have changed, tend to have finances that are more separate, so it can be even tougher to sort things out because there's no joint accounts to get you over the gap. I am only 53. I know, I know, I know. I sound 32. But I am only 53. I have no reason to foresee losing my mental capacity, but I have had a power of attorney set up since my 30s and I would strongly suggest that you do so too.

47:13Just to go on quickly before we come to our two brilliant lawyers, Because a power of attorney means you nominate a trusted friend or relative who can look after your affairs if needed. It does not mean you are giving up control now. You can opt for it to only be in effect if you're no longer capable. And included within that as a safety net, you can nominate other separate people to be notified if the power of attorney is enacted. So they could object to it and say, no, hold on. It's still perfectly compus mentis. This shouldn't be going on. There's a fixed cost to register of power of attorney.

47:47It does vary across the UK nations. In England and Wales, it's currently£82 per power of attorney, and there are two, one for finance and property, one for health and welfare. So both is£164. Worth noting, that's increasing by£10 to£92 for applications from the 17th of November. So if you get it in quicker, it's cheaper. If you're unsure how to do this, pay for help. especially if you've got complex financial affairs or are uncertain again gold standard is a solicitor to get a power of attorney that could cost you 400 to 750 quid alternatively there's a halfway house at which where which wills will get you to fill in a questionnaire it populates then it's checked by a specialist paralegal within two weeks normally costs around 100 quid and i will give you some diy power of attorney tips later but it is only for people who are seriously you know on the ball, can dot the I's, cross the T's and follow instructions very carefully and are good at admin tasks.

48:45Otherwise, it can get quite tough. With that, over to our, I don't know why I was going to call you tame lawyers. I don't think you're either of you particularly. I'm going to call you tame lawyers. Yeah, there we are. Melinda and Austin are back with us. Let's get on to some of these power of attorney questions. Steve, my wife and I are 57 and 53. The kids are 20 and 22. Should we be thinking about giving them power of attorney now so it's in place or wait until we are a little older and retired? I mean, Melinda, you set up a power of attorney, but you wouldn't have your kids taking over as your attorneys now.

49:20No, most of us wouldn't want our power of attorney to be used by our attorneys as soon as we've made it. It's a sort of just in case it needs to be used document, really, in the ideal world. And especially at that age, you would do it, you would keep it safe, you would let your kids know it's ready if anything happens. And Austin, I presume exactly the same. Just do it as early as you possibly can once you've got, you know, and then it's in place and there's nothing to worry about. Absolutely correct. One thing, the Public Guardian in Scotland are a fantastic organisation, but they always seem to be under pressure and it takes months to register.

50:01It can take up to a year to register a power of attorney in Scotland, although if there's an emergency, they'll take it out of the pile and do it for you there and then. So it's something that should be done. I think of it as like an insurance policy. You might never need it. You might live healthily until you suddenly pop off at the end. But if you don't have it and you need it, then it's too late to get it. So, yes, plan it in advance. Do it when you're fit and well. And then that's where we move on to Dean's question next. Dean says, can you give two examples of how much it costs with a power of attorney and costs without?

50:34So in layman's terms, etc. Do you know what, Dean? The best thing I can do is read to you what Stephanie wrote to me on Facebook. And I can just say this is one of countless similar examples I get about the problems of not having a lasting power of attorney in effect. Stephanie says, I can't stress enough how important a POA is. My mother had made a will, but not a power of attorney. Sadly, she suffered a stroke, which led to vascular dementia. She could not make decisions regarding her finances. I had to apply for a deputyship's order via the court, which took eight months to come through and cost£4 ,000.

51:13Plus, I had to make annual reports to the Office of the Public Guardian, which cost£300 a year, as to how my mum's funds were being used. All in all, a very costly exercise. And many people get in touch with me, not just talking about the cost, The time, the delay, the frustration of not being able to do anything, the huge amount of admin and stress that it loads on top when you're already trying to look after a struggling person who's got dementia or who has lost their capacity. So, I mean, the physical, you can't do it direct a power of attorney costs this and court of protection costs more or the equivalent court of protection to court of protection costs more.

51:51But very simply, not getting a lasting power of attorney if you then need to take over somebody's finances is far more expensive, far more stressful and takes far longer. I presume I've got no disagreement from the lawyers on that. Well, I would add actually something more. And that is, let's say you've got two children. One applies to be the deputy in the Court of Protection and the other objects to that person applying. You've then got a contested one, which takes even longer, costs even more money. So making the lasting power of attorney means that you choose the person you want to manage your finances to.

52:26That takes me on to Carol. What do you do if you live on your own and don't have anyone who could act as power of attorney? Sometimes people decide, well, I've got a couple of trusted friends who are in the same position as me. Maybe we can do a deal with each other and we'll both act as attorneys for each other. On the other hand, maybe we're both the same age and therefore what if we both get old and sadly lose our faculties at the same time? I mean, it's tough. You've got to choose someone trusted, haven't you? I mean, abuse is possible. I should say I'm very strong that people get a power of attorney.

52:58I don't want anyone to think that I'm blinkered and think that it is a perfect solution. There are problems with power of attorney. They can be abused. But a lot of people then do turn to a solicitor. It does cost money because you've paid for the power of attorney and then you do pay for the professional work they're doing in terms of managing your finances. However, they're regulated, they're insured. And so, you know, they know what they're doing as well. And at the end of the day, as you say, trust is so important when you don't know what's going on yourself. So, Austin, I mean, you may well know this.

53:32Any other options? Are there any charities out there who might be able to help if you haven't got anyone to be your power of attorney? One difficulty in Scotland is you can appoint for your financial and property side, which, by the way, we call a continuing rather than a lasting power of attorney. I don't know why. It's our word. You can appoint a kind of institutional attorney, and it could be a firm of solicitors, solicitors, trustee company. If charities offer this, then that's fine. for the welfare powers it has to be a kind of human person and I think that's because there are decisions about care about turning off machines about placement in nursing homes and so forth so it has to be a a real person as it were and there you really just do have to find somebody who is trusted now it could be a solicitor or other professional acting in a kind of personal capacity and yes you can can talk about costs etc I mean I am an attorney and a guardian for various people just because they don't they kind of don't have anybody else so that's something that that I've kind of ended up having to do um but it's I would be very sad if somebody really didn't have anybody at all that they could nominate as a trusted uh representative as attorney but that that is the answer for the welfare powers has to be a human person I mean it could even be a local clergy if you happen to know them or somebody like that anybody you could ask so i'll move on to a question from di who asks when should you activate the power of attorney i presume by this she means when should you you know sort of say i'm no longer capable what's the tipping point there well i think it's like fingerprints everyone's different i i think that it becomes obvious to those around and let's assume that there is family and there are friends or you know associates that or seeing somebody.

55:18I just think there's a growing realisation. God forbid that there's a crisis, you know, you fall or you wander out into the street or you give somebody a lot of money, but there are warning signs. And I think that the principle underlying it all is you've got to be honest with your family and friends. You've got to have a shared information kind of regime or philosophy with them, not boring everybody rigid about every single thing that happens to you, But people, your family have got to know what's going on. And you have got to be, if people sit down with you and look you in the eye and say, you know, you missed your meals, you've done this or you're wearing odd socks and so forth.

56:01You know, if there's a picture building up, people have got to be honest and open to that. I think that's the best I can do. I'm going to move on to Michael's questions. Thank you for that, Austin. Melinda, I'll put this to you. They're asking what mix of skills and experience should a power of attorney holder have? And how do you replace a power of attorney holder or the attorney effectively we're talking about? How do you replace them? What if they die? Or you want to change somebody, I presume. OK, so if you want to change your attorney, unfortunately, you have to completely cancel the power of attorney document that you've got and start again.

56:36you can though in the other scenario if one dies for example then you can have a joint and several appointment and that means that the surviving attorney can continue to act what skills do they require well obviously they've got to be honest and trustworthy in the first place the next bit is depends upon what your finances are like if your finances are pretty simple pretty low-key than just the skills of someone who knows how to manage a bank account and has the right ethos in terms of making sure you have everything you need. If you've got complex affairs, if you're the director of a company, all those sorts of things, then you really need to go to another level in terms of the expertise that your attorney needs.

57:22And very often that would include or maybe lean you towards having a professional power of attorney. they could you could have a professional and a non-professional couldn't you to do it together so that you have you have someone who's sort of your trusted person and then they've got somebody else who's working with them yeah and of course you have to decide whether that is jointly as in they both have to do everything or jointly and several of course you can put also guidance etc in your power of attorney so you could say i've appointed them joint and several i want this one to do with these type of affairs this one to do with that type of affairs and i actually want them to share details of what they're doing all the time.

58:01You know, you can go quite detailed as to how you want them to manage things for you. And it's important, isn't as well, you can only tell your representative to act in your best interest. You can't instruct somebody to act in the best interest of, say, your children or your partner. Your attorney can only act for you. That's actually just the law. It's not even about what you're telling them. The Mental Capacity Act is the one that provides for the making of lasting powers of attorney and that is the absolute duty of an attorney that they have to only act on behalf of that person so even if you're attorney for your mum and you think your mum would want to do some inheritance tax planning and give you a nice wadge of money if your mum has lost mental capacity you can't just think she would have done it you have to go and get permission to actually benefit yourself to that degree so there's a question from rock and roller 912 who says and this is for you austin can a person who is a beneficiary of a will have power of attorney in scotland for example assigning a do not resuscitate in hospital for a relative so therefore i presume the assumption is that they may well benefit from the will if they were to sign a do not resuscitate because the person would pass away more quickly and they would gain the finances so is there an implicit conflict of interest there or is it allowed It is allowed, but that sounds like more like a dinner party conversation question than an actual legal conundrum.

59:34It comes down, I think, to reality and separating out the best interests of the adult person under the power of attorney to everything else. That comes first. And if the situation is that in order to end the suffering of an extreme situation where somebody is in a hospital bed and they're on machines and they're being kept in line with this, then if somebody has been appointed an attorney, then that is the principal issue that everybody would focus on. the fact that that attorney, who may very well be a beneficiary of the will, and there's nothing uncommon about that, because you might be appointing a spouse or grown-up children as attorneys, and they are the principal beneficiaries of your will.

1:00:24So the conjunction of those two ideas is not novel at all. The idea that somebody could swoop in and demand that an adult be treated in such a way that would end their life in order for me to get there longer it's kind of fanciful because there are so many stops in in in that in that path the doctors would have to give advice that um there was nothing else to be done than uh ending care uh the there would be other family around there would be nursing staff you know if it really really came to it another member of the family could seek an interdict, which is the Scottish version of an injunction in court urgently to stop this person acting as an attorney or the public guardian might be consulted.

1:01:15But that is a really extreme and unusual situation that is being presented. Let me turn it on its head with this question from Eileen, though, about power of attorneys. And she doesn't say whether it's England or Scotland. We'll go with Scotland for now, because I presume on this issue it's pretty similar. She says, we had a health one in place for my mum. So that is where you are putting a power of attorney in place that says someone else will be able to make medical decisions for you in the event that you don't have capacity to make them for yourself. My brother told the doctors at the hospital it was not in her best interest to actively treat her.

1:01:47The doctor asked, did he understand what it meant? Yes, he did. But the doctors ignored this, treated her and made her linger for another week. What should we have done? so I presume it would have been going to court for an injunction against treatment would it yeah it's gotten an interdict but similar thing yes it would have been it would have been taking the matter to a judicial um referee for want of a better word probably before that the the attorney would have sought a second opinion uh from other medical um people within the hospital or elsewhere and brought that to bear as pressure and would have accelerated, not accelerated, but would have escalated the matter up to higher authority within the medical world.

1:02:34And only when that didn't work or didn't create the result that the attorney genuinely thought was the right thing for the adult, then urgently you could go to the sheriff court and seek an interdict and the matter would be brought into an independent judicial environment. Melinda, I presume while the process might be slightly different in England, the principles are roughly the same. Yes, although what I would add is that if somebody hasn't already made the lasting power of attorney for health and welfare, they might not realise this, that there are two parts to it. One is to provide a general right to make decisions as to health and welfare.

1:03:11The other is to either agree or not agree that the attorney has the right to make a decision about life sustaining treatment. so you can be a power of attorney for health but not have the right to make a decision about life sustaining so that's the only thing that i would add in there so interesting yeah and that's obviously extremely important and then yes in our in england and wales we apply to the court of protection for a court decision as to um whether the treatment can be stopped now i've got two two last ones that are both just about once power of attorney is in place operating finances uh there's an england one first sarah it would be valuable and helpful to receive instructions as to how to register with banks when it's received i had no idea anything had to be done only discovered in a passing comment now in england you can actually get a code with your power of attorney why don't you talk us through that melinda yeah so um there's a code issued that you send to the various banks now what i would say is there is no standard across the banks so they don't have one set of guidance as to how they process powers of attorney.

1:04:24Each bank has their own set of rules, their own risk assessment, etc. So some require you to go in person, show your ID, others will do it online. It's obviously much easier if you're at the same bank as your mum, for example, and you're verified with your ID there, then that will usually be easier. What is hopefully I think some good advice is if you have a power of attorney for somebody elderly who can manage their affairs but they want you to support and help them then you could register the power of attorney with their bank so that your signature is acceptable so that you can help them out but make it absolutely clear to the bank that your parent still has mental capacity in other words not to prevent them themselves also dealing with the bank the beauty of doing that is that if your parent then deteriorates and is no longer able and it becomes urgent that you do have that ability you're already on record you can already do it and when i said it was what i just say i should have just explained the online code what the online code is is you have to prove you have the lasting power of attorney and in england you can get a 13 digit code that is effectively an online digital representation of the lasting power of attorney that is legally valid, England and Wales, I should say.

1:05:43Yeah, yeah. Not all banks or financial institutions accept that, unfortunately, because you could be having to deal with an insurance company, for example. No. Interestingly, with my separate hat on as chair of the Money and Mental Health Policy Institute, we are undergoing research on third-party access for mental health and capacity across not just as power of attorney, but also carers' cards and other things. I think they It needs to be a standardised system that makes it easier for everybody to operate. Because at the moment, there is a stickiness. If you are acting as somebody's representative, there's often a stickiness that means you can't switch to a better account because it's just so much hassle to do.

1:06:21And we need to get rid of those barriers. They're not there. I'm going to move to our final question, which is for you, Austin. And normally, Scotland does quite well in these things with rather good rules. Margaret's not very happy, though. She says, in Scotland, why do I always have to get a newly certified copy of the power of attorney as banks won't accept one certified more than six months ago? Why isn't there a code system as there is in England? Great question. Don't know the answer. Wish there was a code. I have had to personally traipse into banks and building societies where I've been appointed attorney, even though they know perfectly well who I am.

1:06:58And I've had to go through the lengthy procedures. I don't object to it because whatever's needed, I'll do. But we are behind the times in Scotland when it comes to administration of powers of attorney. And I agree with Margaret's frustration. I tell you what, at the end of this podcast, Austin, why don't we write a joint letter to the minister responsible in Scotland to say, come on, pull your finger out and get something going similar to the one in England? Well, I am not a political person, but I think that is a good idea from an administration point of view. But we should maybe start by writing to The Public Guardian in Scotland to say, we love what you do, but we need these changes made to bring things into a more streamlined procedure for the adults that we support.

1:07:52Of course, it's not a political suggestion, certainly not a party political one. It's just a general one saying, hey, you know, come on, let's make it a little bit easier for the people of Scotland who are already in under difficult circumstances to be able to put their power of attorney in place. Maybe I'll get in touch with you privately and we'll see if we can come up with something. I will get it. I'll get it drafted. And you'll if you fancy checking the legals for me on it. As long as I don't need to check the spelling, we'll be fine. No, I know. I have other people who do that. My spelling's awful.

1:08:17That's why I'm a broadcaster. Right, so just a huge thank you so much to Austin Lafferty, who's a member of the Council of Law Society in Scotland, and Melinda Giles, who's a member of the Law Society's Wills and Equity Commission and works in England and Wales. My apologies to those in Northern Ireland that we don't have a Northern Irish lawyer. Many of the principles we've talked about for England and Wales tend to be similar or not exactly the same in Northern Ireland, so you will need to get some specific guidance, but hopefully it's given you a way through. You two are both brilliant. Thank you so much for coming on board.

1:08:54Now, our solicitors have gone, but I have one more quote to read out. I'm not doing it behind their backs, don't worry. It's from Louise who says, I want people to know that in some situations, power of attorney can be done for free. You don't have to pay hundreds with a solicitor or a barrister. It's just£82 per pot, that's rising in November, on the government website and is so easy to do. I've just done it for both my parents. It's also worth me noting, by the way, that if you're on a very low income or on benefits, you may be able to get the power of attorney for free. And it's worth looking at their guidance on that.

1:09:25Now, look, I think Louise has made it a little bit easier than it is. I have many people who have real struggles in doing the power of attorney for themselves. I would always say if you've got a complicated situation or you're confused, then do go and pay for some help to get this right, because it is such an important document. and it's worth noting that in the financial year 2023 to 2024, 51 ,000 power of attorney applications were rejected due to mistakes. Now this is specifically for England and Wales as you can't do it online in Scotland and it's more difficult in Northern Ireland. But I do have eight key checks for you if you're going to try and do the power of attorney yourself and you will start to see from these, this is only for people who are really good at dotting I's, crossing T's, good at admin and understand how everything works.

1:10:14So let's do the eight checks. First of all, use the right form. There are two types of lasting power of attorney, one for property and finance, another for health and welfare. You must apply for each separately, yet they're similar, so people often use the wrong form. Number two, be specific about what is an instruction and what is a preference. This is in section seven when you're filling it in. For example, A preference would be, I'd like my attorneys to consult my doctor if they think I don't have the capacity to make decisions about my house. An instruction is, my attorneys must not sell my home unless, in my doctor's opinion, I can no longer live independently.

1:10:54Be very specific about the difference between them. Number three, as I've already mentioned, instructions and preferences can only be in your best interests. Not in the best interests of anyone else, even your child or partner. They must act for you alone. Number four, you can only ask them to do legal things. So, for example, you can't give instructions or preferences currently about euthanasia or assisted suicide, nor can they alter your will. Number five, include all the necessary and sometimes unnecessary information. So, I mean, include writing middle names where a full name is required. Check every number and postcode and spelling and send every page of the application back, even if they're blank, send every page back.

1:11:40Number six, cross out, don't delete mistakes. Tippex, correction fluid is not your friend. You need to fill in the form in black pen, pencil isn't allowed. If you make a mistake, you must cross it out and write a correction, then initial that. In other words, you know, I would put ML, my initials, next to it as close to the box as possible. If you get that wrong, it could be invalid. Number seven, use an impartial certificate provider to verify your application. There are strict rules around this. It can't be one of your representatives or someone related to one of your representatives, even by marriage.

1:12:14So make sure you look up who can be your certificate provider's impartial signature first. Don't just do it willy-nilly. And finally, number eight, get the form signed in the right order. Sounds straightforward, but the form needs to be signed five times before it can be sent off, and that has to be done in the right order. There is more details on all of that online if you want to check it out. You understand why I say this is a pernickety thing that you need to do to do it right and it's one of the reasons why 51 ,000 were rejected and why getting advice could help you. As well as also there's a lot of thinking that needs to go into doing a power of attorney.

1:12:53You know, what structure, what you actually want to happen, what are the questions to ask yourself. So hopefully for those of you who do want to do it yourself, that's given you a little bit of help but don't think that means I recommend that's the first option that you should be taking. In many cases, advice is probably the best. That's it for this week. Thank you so much to our two solicitors who were absolutely brilliant. If you've enjoyed today's podcast, please tell your friends you've been listening to the Martin Lewis podcast and why not suggest they and you subscribe? Then your pockets will be pleased with you.

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