Can you grant new wills and powers of attorney in lockdown?

Post by Mearns & Company in News

Guest blog by Graeme Thomson of Balfour+Manson LLP

Six months ago no one would have predicted the worldwide health crisis that we are currently facing; how this would affect life expectancy for some and how the resulting lockdown would restrict the ability to deal with personal affairs for many more.  Whilst there are undoubtedly numerous lessons that can be learned from the experience, the most glaring is perhaps a simple reminder that we don’t always know what’s coming.  For this very reason, it is rarely advisable to postpone putting a will and power of attorney in place.  For anyone who has not yet put the will and power of attorney wheels in motion, the lockdown need not be the cause of further delay.

You may have seen recent reports on the need for emergency legislation to make will signing possible whilst people are self-isolating.  Fortunately, the Scottish legislation governing the signing of wills is less strictly worded than its English counterpart.  In Scotland, wills can be witnessed remotely by video call, providing the signed will is immediately sent to the witness so that his/her signature can be added.  This a great solution for many clients who are keen to finalise their wills whilst still in lockdown.  For clients who do not have the necessary smartphone/computer equipment (or, as is sometimes the case with older clients, the skills to operate them) their wills can be signed without a witness.  Such wills are still valid in Scotland but must be supported by additional evidence if they are ever presented to a court.  It is therefore recommended that an unwitnessed will is only used as a stop-gap solution until the lockdown restrictions are eased and a replacement will can be signed with a witness.

The position is somewhat similar for powers of attorney.  These must be signed in the presence of a doctor or solicitor, who then certifies that they are satisfied with the granter’s capacity.  Again the legislation does not insist upon physical presence and the Public Guardian has confirmed that remote witnessing through a video call is acceptable.

Once a power of attorney has been signed and certified, and the attorneys have formally agreed to the appointment, the document must be registered with the Public Guardian before it can be used.  The registration process takes months to complete and the Public Guardian will only expedite an application if there is a genuine emergency.  Unfortunately, self-isolation is unlikely to amount to such an emergency.  So, for anyone who is self-isolating and who is looking for a (non-self-isolating) attorney to be able to help with the running of their general affairs, the best advice is to have a power of attorney prepared, signed and submitted for registration as soon as possible.

As well as dealing with immediate financial matters, an attorney can be granted powers to make welfare decisions (including decisions about medical treatment and end of life care) in the event that the granter becomes unable to make such decisions for themselves.  These powers are sadly increasingly relevant at the moment, but again must be put in place in advance.

Whilst the lockdown, self-isolation and social distancing are certainly creating issues for the granting of new wills and powers of attorney, there are (in the most part) solutions and workarounds that can be explored.  The private client team at Balfour+Manson have a wealth of experience in dealing with wills and powers of attorney and are happy to assist with any queries or enquiries.

For further information on wills and powers of attorney contact Graeme Thomson, Balfour+Manson on 0131 200 1236.