Scottish Law

Couples in Scotland will usually legally separate by means of a separation agreement. This is often entered into when the couple initially separate, to regulate their financial affairs and the care arrangements for their children. It's common for the couple to come to an agreement regarding the division of their assets and for payment of financial support for the spouse and children and indeed for the division of assets to take place at, or shortly after, the time they separate. Thereafter, if the parties do come to divorce, the divorce action can proceed on an uncontested basis.

Such separation agreements are normally registered in the Books of Council and Session located in Edinburgh; this can be done simply by writing a letter to the Books of Council and Session with a copy of the signed agreement and asking for it to be registered. There is a fee payable depending on how many pages the agreement extends to and how many copies are required; once registered, the agreement has the same effect as a court decree and can be enforced.

There is only limited scope for changing the terms of a registered agreement. For example, it's possible to vary the arrangements made for the care of the children and to vary the arrangements made for the payment of maintenance for a spouse and/or children if there is a change of circumstances. Otherwise the provisions of the agreement can only be challenged if it can be shown that they were not fair and reasonable at the time they were entered into.

As executor, you have the power to deal with your father's assets from the date of his death. However, it's not until you receive a 'Confirmation' in Scotland that you can prove your authority to those institutions and authorities that hold assets in your father's name.

Application for Confirmation is made to The Sheriff Clerk of the Sheriff Court in the area in which the deceased had been domiciled at his death. A list of Sheriff Courts is available online at www.scotcourts.gov.uk or by calling the Scottish Courts Service on 0131 229 9200. The grant of Confirmation is proof to the public that the executors can realise the deceased's estate, collect from the deceased's debtors and distribute the assets, as determined by the Will.

The executors can now send the Confirmation, or a Certificate of Confirmation, to all parties concerned, requesting whatever money is due to the estate. This money can be deposited into the executors' bank account from which debts of the deceased can be paid.

In England and Wales, strictly speaking, there is no need to have signatures witnessed if the tenancy agreement is for a term of less than three years. However, it may be a good idea to have any guarantor's signature witnessed, particularly if they do not sign in front of you. The witness can be the same person for all three signatures on the agreement.

In Scotland, it's recommended that the tenancy is witnessed, as it then becomes self-proving.

In order to create a proper Short Assured Tenancy, you must complete an AT5 Notice of a Short Assured Tenancy which must be used with a Short Assured Tenancy Agreement. The completed AT5 Notice must be given to the tenant(s) before the agreement is signed and dated. It can be given at any time before the agreement is entered into. However, you must be able to prove that it was given to the tenant before he or she signed the agreement, so it's wise to give notice at least one day in advance.

Assured shorthold tenants have the right to refer rent matters to the Rent Assessment Committee. In England and Wales, however, any referral must be made within the first six months of the tenancy. In Scotland, it can be made at any time during the period of the tenancy.

The Committee can only consider the application if there is a sufficient number of similar dwelling houses in the area, and will only reduce the rent if it considers it to be significantly higher than might reasonably be expected, compared to rent paid under similar tenancies in the locality.

Once a rent has been determined by a Rent Assessment Committee, the landlord cannot serve a notice of increase until more than 12 months have expired since the date of determination.

There are three kinds of Scottish Power of Attorney: 'General', 'Continuing' and 'Welfare'.

General Powers of Attorney (GPAs) are a relatively straightforward authorisation for wide-ranging use for specific periods or events; for example, you might need to create a General Power if you go abroad and need to entrust the management of business interests to your spouse. A General Power is automatically revoked if you become mentally incapable.

Continuing Powers of Attorney (CPAs) and Welfare Powers of Attorney (WPAs) are rather more complicated to create and administer than General Powers because they remain valid in the event of you becoming mentally incapable of handling your own affairs or making decisions with regard to your welfare.

A CPA provides a way of allowing there to be long-term control of your interests, albeit in the hands of others, particularly if you are elderly or in poor health and an Attorney will usually be able to use it both before and after you become mentally incapable. A WPA provides a way of allowing you to nominate a person who will be able to make decisions in regard to your welfare only when you become incapable of doing so yourself.

1. Delay. It can take several weeks or even months to have someone appointed who will have the authority to make legal, financial and business decisions on your behalf. With a CPA the Attorney can act for you immediately. The continued control of your interests is thus maintained by someone you have chosen.
2. Selecting an Attorney. If you become ill or disabled, you lose the ability to select your Attorney. The court may or may not grant authority to someone you would have preferred.
3. Advantages of immediate and lasting delegation. From the date on which you sign and register the CPA, the Attorney has authority to act on your behalf, unless you have specifically restricted his or her power.

In order to be effective, the Continuing Power of Attorney (CPA) or Welfare Power of Attorney (WPA) requires to be registered with the Office of the Public Guardian. The CPA can be used immediately after it has been signed by you (the 'Granter') and registered with the Office of the Public Guardian. The Attorney must be aware of when the Power begins and ends, so that he or she will meet his or her responsibilities and not exceed the authority. Third parties need to know when they can and should reasonably rely upon and deal with the Attorney.

The WPA can be used only after you are incapable of acting yourself, notwithstanding that it will have already been registered with the Office of the Public Guardian.

You can revoke the CPA or WPA at any time after it has been registered, as long as you are still mentally capable. If you want to do so, you should consult a solicitor to draft a Deed of Revocation.

A CPA or WPA will be terminated (a) where you and the Attorney are married to each other, upon the granting of a Decree of Separation or divorce to either party or a declarator of nullity of marriage, unless the CPA or WPA states otherwise, or (b) on the appointment of a guardian with powers related to those conferred in the CPA or WPA.

Any individual who is aged 18 or over, has sufficient mental capacity and is not an undischarged bankrupt can make a Continuing Power of Attorney (CPA) or Welfare Power of Attorney (WPA). A company or a partnership cannot make a CPA. Two or more Donors cannot make a joint CPA or WPA appointing the same Attorney.

To have the mental capacity to make a CPA or WPA, you must be capable of understanding the nature and effect of the powers granted at the time you make the CPA or WPA.

When you make a Continuing Power of Attorney (CPA), you can state what kind of authority the Attorney may have. This would normally be a general authority with wide powers; this means that the Attorney would be able to do anything which you are or were legally able to do.

If you wish to impose any limitations or restrictions, you must do so clearly, such as for a specific or limited authority. If you don't want the CPA to have immediate effect, but want, for example, it to become effective only when you have actually become mentally incapable, that restriction should be clearly stated.

When you make a Welfare Continuing Power of Attorney (WPA), you give authority to the Attorney to deal with all matters affecting your welfare after you cease to be capable of exercising such authority yourself. Such matters might include medical treatment or the choice of where you live.

When you fill in the form to create a Continuing Power of Attorney (CPA) or Welfare Power of Attorney (WPA), you have the opportunity to restrict the extent of the authority being granted to the Attorney, or to place limitations on him or her dealing with certain parts of your property or welfare. You may also choose to appoint different Attorneys to deal with different parts of your property.

If you don't want the Continuing Power of Attorney (CPA) to be effective immediately but instead want it to come into effect when you become mentally incapable, the CPA contains a condition that it should not be registered until the occurrence of a specified event (e.g. the incapacity of the adult). The Public Guardian will then not accept the CPA for registration unless and until that event has occurred.

After the Continuing Power of Attorney (CPA) or Welfare Power of Attorney (WPA) has been signed, a Certificate must be completed and signed by a 'Prescribed Person', who can be either a solicitor, a practising member of the Faculty of Advocates or a registered medical practitioner. This Certificate states that the Prescribed Person has interviewed you (the 'Granter') immediately before you subscribed the CPA/WPA and that he or she is satisfied that at the time the CPA/WPA is granted you understand its nature and extent and that he or she has no reason to believe that you are acting under undue influence, or that any other factor prevents the granting of the CPA/WPA.

Once the Certificate has been completed, the Application for Registration must be completed, including being signed by the Attorney confirming his or her agreement to act. The Public Guardian will refuse to register a CPA/WPA without confirmation from the Attorney (within the Application for Registration of the CPA/WPA) that he or she is willing to act as Attorney.

The Application to register the CPA/WPA must be sent to the Office of the Public Guardian. It's not acceptable to apply by letter. The completed form must be accompanied by the original CPA/WPA with the appropriate Certificate and a cheque for the registration fee, made payable to 'Scottish Court Services'.

An Advance Decision is a decision made by you that at a later time and in circumstances specified by you, and when you are not otherwise able to consent to or refuse the treatment, you do not wish a specified treatment to be carried out or continued. In other words, it is a means for you to communicate in advance your wish to refuse any treatment you might otherwise receive. It can be used to refuse treatment you object to on religious grounds or for any other reason, and can be used to refuse treatment that is necessary to save your life ('life-sustaining treatment').

An Advance Decision applies only to the provision of health care to you. It cannot be used to make other decisions, such as in relation to your financial matters (including how any care should be paid for).

Once a General Power is granted the Attorney has the authority to take decisions and actions on the Donor's behalf in relation to the Donor's property and affairs, as if the Donor were taking them himself, except that the Attorney cannot make gifts.

Unlike a Lasting Power of Attorney, there is no provision for limiting the scope of the Attorney's powers in a General Power; but otherwise the extent and scope of the two are the same.

A General Power is very wide-ranging and gives an Attorney a great deal of power (it is possible to give a limited Power of Attorney, but further information should be obtained from a solicitor). In effect, an Attorney can do anything he thinks fit in relation to the Donor's property and affairs.

However, the Power does not cover functions of the Donor which relate to certain special personal responsibilities. For example, an Attorney cannot normally perform in the Donor's role as a trustee and cannot perform in the Donor's role as personal representative (i.e. administrator) of someone's estate. An Attorney cannot execute the Donor's Last Will & Testament, take action concerning the Donor's marriage or delegate his Power.

It is important to bear in mind that the Donor does remain liable for the actions of the Attorney. Clearly, the extent of the Power is such that it should only be given to somebody the Donor trusts implicitly.

If the Donor becomes incapable of making the decisions conferred by the Power, the General Power is automatically annulled. Otherwise, a General Power remains valid until it is revoked. Powers can be revoked orally, but to avoid misunderstanding it is wise to write 'cancelled' on the original form or simply tear it up.

The General Power would also be revoked by the death or bankruptcy of the Donor or Attorney.

An Attorney under a Lasting Power of Attorney Personal Welfare must be over 18 and must have capacity to use the Power.

An Attorney under a Lasting Power of Attorney Property and Affairs must not be an undischarged bankrupt or an interim bankrupt and if s/he is made bankrupt, s/he will cease to be an Attorney (if s/he is the only Attorney, the Power will be automatically revoked). There is no restriction on the Attorney of a Lasting Power of Attorney Personal Welfare being a bankrupt.

The Attorney's powers are expressly subject to the restrictions and conditions contained within the Power of Attorney.

A Lasting Power of Attorney Property and Affairs does not apply to any decisions about the Donor's personal welfare. These decisions must be made under a Lasting Power of Attorney Personal Welfare or, if not possible, by the Court of Protection or someone appointed by the Court.

A Lasting Power of Attorney Property and Affairs does not authorise the Attorney to make gifts to any persons except in the circumstances described below.

A Lasting Power of Attorney Property and Affairs does not permit the Attorney to make a new Will for the Donor. The Court has the power to do this and so if it is felt necessary, the Attorney (or some other person) should apply to the Court.

Lasting Powers of Attorney do not authorise the Attorney to restrain the Donor (that is to prevent the Donor from doing something) unless three conditions are satisfied. These are:

• that the Attorney reasonably believes that the Donor lacks capacity in relation to the matter in question;
• the Attorney reasonably believes that it is necessary to do the act in order to protect the Donor from harm; and
• that the act is a proportionate response to the likelihood of the Donor suffering harm and the seriousness of that harm.

• consenting to marriage or a civil partnership;
• consenting to have sexual relations;
• consenting to a decree of divorce being granted on the basis of two years' separation;
• consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation;
• consenting to a child being placed for adoption by an adoption agency;
• consenting to the making of an adoption order;
• discharging parental responsibilities in matters not relating to a child's property;
• giving a consent under the Human Fertilisation and Embryology Act 1990.

If the Attorney no longer wishes to be an Attorney, s/he can complete a notice refusing ('disclaiming') to continue to do so. This must be in Form LPA005 and sent to the Office of the Public Guardian.

The Attorney must not give up the role of Attorney without informing both the Donor and the Court.

A Living Will/Advance Medical Directive (Scotland) is an advance declaration of your wishes about medical treatments which you could be given for any future illness, which you may not be able to communicate yourself at the relevant time because of physical or mental incapacity.

With a Living Will, only refusals of medical treatments or procedures will be binding on medical staff. Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors will not have to follow your instructions.

You can also appoint someone whom doctors may consult on health care matters for you; this person is referred to as a Health Care Proxy. You should discuss the options in this Living Will with your family and doctor before completing it.