Residential property
16 Sep 2020 News

Is now really the time to be making plans? Actually, yes …

Many aspects of life have been on hold over the last few months, having watched various friends and relatives postpone weddings, big birthday celebrations and holidays, not to mention those stuck at home shielding. Even those who managed to escape for a much-needed break found themselves unable to relax completely, scouring news updates to see if their chosen destination had found its way onto the quarantine list. So, who would even think about making plans at the moment?

If, like me, you’re getting just a little bit tired of references to these ‘strange and unprecedented times’, and you’ve accepted that our ‘new normal’ is likely to continue for at least a while longer, then perhaps you’ll agree that there’s no real reason to delay getting organised, especially when it comes to planning for whatever the future may hold.

In a nutshell, I’m talking about exercising your right to choose, firstly, who should be allowed to make financial or health decisions on your behalf if you later wanted or needed assistance (by granting a Power of Attorney); and, secondly, who should inherit your assets when you are no longer around (by signing a Will and keeping it up to date).

Encouragingly, a recent UK-wide survey of individuals aged 40+ (commissioned by the organisation Solicitors for the Elderly and carried out by an independent market research company) found that 65% had drawn up a Will. For the 35% who hadn’t, however, the survey also highlighted a worrying gap between intention and action: nearly half of them said that Covid-19 had made them think they ought to remedy this; but fewer than one in seven had actually taken steps towards doing so. Although it’s possible that the pandemic may have reduced people’s reluctance to think and talk about death, too many still adopt the risky ‘I’ll get around to it at some point’ approach. But what if the unexpected happens before you’ve gotten around to it?

It’s worth bearing in mind that one consequence of dying without a Will – or dying with a Will that no longer works, i.e. because some or all of your intended heirs have passed away before you – is that Scots law is extremely strict about who inherits your estate, which could end up going to distant blood relatives (who you may not have liked, or even known), rather than to individuals or charities you care about. Earlier this month, BBC Radio Scotland aired a fascinating – and surprisingly uplifting – half-hour documentary called ‘Next of Kin’, which followed a team from the National Ultimus Haeres Unit (part of the Procurator Fiscal’s Office), who are responsible for investigating cases where someone has died without a Will or known relatives. As they explained, it can be heartbreaking to have to inform a close friend or stepchild that only those related by blood can benefit from the estate. Having a Will and, just as important, reviewing it every so often, can help to avoid this scenario and ensure that your estate eventually passes to the right beneficiaries, and not to someone who qualifies simply by accident of birth.

A well-drafted Will can also protect the assets you leave behind from 1) an unnecessary Inheritance Tax bill, 2) being whittled away to meet the care costs of those who survive you, or 3) ending up in the hands of vulnerable or young beneficiaries who may not be ready or able to look after considerable sums of money.

You should also consider  what would happen if you were to lose the ability – even temporarily, through accident or illness – to look after your finances or make decisions regarding your own care and medical treatment. Or, if you were still able to make your own decisions, but struggling to implement them (perhaps because you were shielding and housebound). Signing a Power of Attorney before that situation arose should provide peace of mind that the right people, handpicked by you, could step in and act on your behalf without delay. It could also save your nearest and dearest a huge amount of anxiety in that scenario, by avoiding a lengthy and expensive court application for Guardianship (which could be awarded to someone you wouldn’t necessarily have chosen). If you need any further persuasion, please remember that, in the absence of a Welfare Power of Attorney, the right to decide where incapable individuals live and what care they receive rests by default with their local Social Work Department, rather than with carefully selected relatives or friends who know them well.

Lastly, please don’t be tempted to put off making and carrying out these plans until offices are fully open again and face-to-face meetings can resume. One positive aspect of lockdown has been how well people have embraced technology in order to keep in touch with families and friends via video calls on Zoom, Skype, FaceTime and the like. Since March, we have seen clients become increasingly keen to deal with us in the same way. These video ‘meetings’ enable us not only to discuss and find solutions for their particular circumstances, but even to act as ‘remote’ witnesses when they are ready to sign their Wills and Powers of Attorney. (Thankfully, we were already permitted to witness documents by video link north of the Border, whereas it has taken emergency legislation to allow this – and even then only temporarily – in England & Wales).  In some ways, therefore, it’s almost beginning to feel like business as usual. One client recently told me why she actually preferred this new way of doing things: she saved the time it would otherwise have taken to travel into town and back (especially appealing if the weather isn’t great); she felt safe and relaxed in the comfort of her own home, without having to worry about masks, hand sanitiser or social distancing,; and she wasn’t restricted to our chosen brand of shortbread!

The saying goes that, if something is important to you, you’ll find a way; if it’s not, you’ll find an excuse. If planning for the future is on your ‘to do list’, then why wait? We can help you put things in place, safely and efficiently. 

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