POA and signing changes to a will: Scotland

[Watchagotcha]

We are in Scotland and I'm asking on behalf of my parents in law. We will chase up with a lawyer as well.

MIL has Parkinsons and dementia. She and FIL made wills 20 years ago which are now out of date. They are simple mirror wills but need updated, so I think a codicil for the changes would be sufficient.

My question is: FIL has Power of Attorney for MIL, who no longer has the capacity to read, understand and sign the codicil. Is he able to sign the codicil on her behalf? even though he's the one who will benefit from her will etc?

Thanks for any advice.

No. I think he needs to seek legal advice about applying to the Court of Protection to draw up a Statutory Will.

Court of Protection/Statutory Will do not apply in Scotland
An attorney cannot sign a Will

Hmm ok we will seek further advice.

The changes are to:

Remove MIL / FIL as executors and make DH and his sister executors

Update SIL married name

Update all their addresses.

Do they really need to update the wills if there are no material changes in who gets what?

They might just need a Codicil. Ring citizens advice Scotland. They have loads of advice. Sorry but I am in England and dont know anything about cop or its equivalent in Scotland.

It sounds like your mother has lost capacity due to the dementia so I doubt he can. My parents had the same thing. Mum had lost capacity and so her old will stands. dad was able to update his. He wrote a complete new will due to mum losing her capacity so he didn't want the old "mirror" wills and also due to changes in trust law (I think). Plus the old solicitors had closed down. We are in England though, so different law to Scotland

You don't need to update married name or addresses
At most put a note of new name address with the Wills
The executor can resign post death and assume a new executor
So I don't think new wills /codicils are needed
If the person ha lost capacity they cannot do a Will ,attorney cannot sign a Will /codicil

Thank you all, you’ve given us some good points to consider.

@crotchetyquaver

That is a very interesting point. If FIL dies first and MIL inherits his half of their house plus his share of their joint accounts, it would all get included in a financial care assessment, wouldn’t it? MIL would need to go into residential care (if she isn’t already) if FIL wasn’t around to care for her. Plus she’s unable to deal with property or money in any way.

Hmm more complicated than we thought at first glance.

Yes it's definitely worth paying to get up to date professional advice.

So... what we need to do is sit down with the family and work through the various scenarios (FIL dies first, MIL lives on / MIL dies first, FIL lives on) and try and work out what would happen in each scenario?

Will a solicitor help us do this - and proactively suggest what should / could be done, or do we have to go to them with fairly clear ideas about what we want to do?

Cheers

Yes they should advise you as there are always consequences whatever ends up happening. If the family can have agreed ideas of what they think they would like to happen in each scenario then that's a good starting point.

If FIL knows what he would like to happen assuming care costs don't swallow the whole estate then the solicitor should be able to advise on the most efficient way of achieving that.

Hi @Watchagotcha. Just be mindful if your FIL dies first and leaves everything to MIL, but she doesn’t have capacity, and you don’t have PoA. Nobody will have any access to funds for her care without going through guardianship etc etc. My friend is in exactly this situation just now, which is very upsetting for the whole family.

FIL had capacity prior to his death, and should have possibly left his share of the estate to his children.