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A Will and a Power of Attorney are often spoken about separately, but they should always be thought about together. One protects your wishes after death; the other protects your interests during life if you lose capacity to make decisions for yourself. Without both, there are gaps that the law may fill in ways you would never have chosen.
A Power of Attorney is a legal document that allows you to appoint people you trust to make decisions on your behalf if you become incapable for any reason. This might be because of an illness such as dementia, a serious accident, or another condition that affects the ability for you to make your own decisions. It is for this reason that a Power of Attorney should be seen as necessary for all adults in Scotland, not just those of advancing years. Many families believe that next of kin, such as a spouse, can step in automatically to deal with your affairs, but this is not the case. In Scotland, no-one has the authority to act without a formal appointment. If there is no Power of Attorney in place, relatives must apply to the Sheriff Court for what is a called a Guardianship Order. That process is slow, stressful, and expensive, and it removes your choice over who will act for you.
A Will, on the other hand, is a document that sets out what you wish to happen to your property, money, and possessions after your death. If someone dies without a Will, this is known as dying intestate. Intestacy means that the estate is divided according to the law. This takes no account of personal circumstances. Cohabiting partners do not inherit automatically and stepchildren are excluded unless they have been legally adopted. Assets may pass to distant relatives while those closest to the deceased are left in a vulnerable position.
To illustrate, imagine a man who has lived with his partner for more than ten years and helped to raise her two children from a previous relationship. If he dies without a Will, his partner and her children would not be entitled to inherit anything automatically from his estate. Instead, the estate would pass to his blood relatives under the rules of intestacy. His partner would have to make a claim through the courts to try to secure a share. This is only an example, but it reflects situations that arise regularly and that can cause real distress for families.
Having both a Will and a Power of Attorney in place means that your affairs in both life and death are covered. The Power of Attorney looks after your interests while you are alive. It ensures that someone you trust can manage your finances, make decisions about your care, and act quickly if something happens to you. The Will takes over when you die, giving clear instructions about who should inherit, who should look after any children, and who should act as executor to settle your affairs.
Each document helps to remove uncertainty, reduces the risk of family disputes, and empowers you to decide what should happen rather than leaving the law to decide for you. Both documents can be tailored to your individual circumstances. They can make provision for a cohabiting partner, include stepchildren etc. They can also be updated as your life changes, for example after marriage, divorce, or the birth of a child.
Thinking about these matters while you are fit and well allows you to make clear choices and to protect those you care about. At Scullion LAW, we help clients put Wills and Powers of Attorney in place every day, making sure their plans reflect their real lives and families. If you would like to discuss having these documents created, our team is here to guide you through the process.
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