We regularly advise our clients to have three documents: a Will, a Power of Attorney and an Advance Medical Directive. All three are essential documents for estate planning.
A Will is an essential document which ensures that your wishes are carried out by the executors which you have appointed. Having a Will saves your family from the hassle involved with dealing with an intestate estate once you have passed away.
A Power of Attorney allows you to appoint someone to deal with your estate. Power of Attorneys come in three forms. You can have a Continuing Power of Attorney which deals with your finances, a Welfare Power of Attorney which deals with your welfare and a Combined Power of Attorney which deals with both your finances and welfare. A Power of Attorney can be drafted to cover any circumstances where you would like your appointed Attorney to act on your behalf. Financial powers can start immediately or only take effect in the event that you lose capacity.
An Advance Medical Directive, also known as a Living Will, is a document which gives guidance to your doctors regarding particular treatment you wish to receive or, more importantly, what you would not like to receive. A Living Will can even contain a ‘Do not resuscitate’ clause.
The Requirements of Writing (Scotland) Act 1995 requires the documents to be signed by the granter. However, there are occasions where a granter is unable to sign documents due to a physical impairment or illness. There is a special procedure for signing documents where a person is blind or unable to write called “notarial execution”.
The notarial execution is carried out by a “relevant person” such as a solicitor, an advocate or a justice of the peace. The granter must declare to the relevant person that they are blind or unable to write. The relevant person will then read out the document (or the granter can declare that they do not wish for the document to be read to them) and have the granter confirm that they are authorised to sign the document on their behalf. The document can then be signed by the relevant person in the presence of the granter.
Our Private Client solicitors are also notary publics, and are able to undertake notarial executions on behalf of our clients. Our solicitors offer home visits, including attending hospitals and hospices, and can provide this service when required.
Blog by Amy Wardrop, Solicitor