February 24th, 2016
Most of us respect the older population. We help look after our older relatives – enjoy their company – learn from their wisdom and try to make later life easier for them if we can. It’s just a natural part of family life for a lot of us.
However one group of people only have contempt for our older folk – these are the criminal gangs hell bent on stealing as much money from as many older people as they can. Ruthless and determined these people are out and out criminals. Whilst scams generally never involve violence – don’t for one minute think these crimes do not have a devastating effect on their victims. We’ve had experience of older clients losing significant sums of money. Imagine how distressing that would be – money you have maybe saved over a long time – gone in a flash to someone you thought you trusted. The result often goes way beyond the financial – causing stress, depression , loss of confidence and often affecting the victims’ wider families too.
We need to fight these criminals – old and young together. But you need knowledge of scams to be able to do this. A short article like this cannot begin even to touch on the myriad of scams out there targeting our older folk.
Royal Bank of Scotland as programme sponsors, and STV, have teamed up to make a second series of “Stopping Scotland’s Scammers”. Watching that programme would be a great start point for learning some of the techniques the scammers use. Please tune in ………. find out all about this and think what part you might play in helping stop more older victims being fleeced by these criminals. The series airs for four weeks starting Friday 29th at 8 pm.
We are starting our own social media campaign to support RBS and STV get the important messages out to families. Feel free to join in!
Solicitors for Older People Scotland
January 29th, 2016
The Scottish Government proposes to introduce a significant new property transaction tax of 3% on purchases of residential property where the buyer already owns a residential property.
Effectively this tax on anyone buying a second home or a property perhaps to let out. The charge is likely to come into force on the 1st of April this year.
Deputy First Minister John Swinney said the change in legislation was intended to help first time buyers. Mr Swinney said “our priority is to make sure that first time buyers have the greatest possible chance to get a foot on the property ladder”
The move was met with a mixed reception. The Chartered Institute of Housing Scotland welcomed the new tax. Spokesman Ashley Campbell said “We welcome proposals to increase land and buildings tax for second homes and buy to let properties”.
On the other hand John Blackwood chief executive of the Scottish Association of Landlords was scathing about the new proposals. He said “The supplementary tax on the purchase of second homes will have a huge impact on the buy- to- let market and exacerbate an already serious shortage of properties in many areas.”
The new tax certainly is quite significant – kicking in as it does for all properties over £40,000 in value – which pretty well means every property. That means anyone buying a second property of £145,000 or over will pay a minimum m 5% tax with the rates going up at higher prices. So the cost of buying second homes is going to be hefty from April.
David Borrowman of Caesar and Howie comments “Mr Swinney suggests this measure is to help first time buyers. I really don’t want to get into politics but I cannot agree with that suggestion – this is a revenue raising exercise pure and simple. The Scottish Government failed to make the targets it set itself with the new Land and Buildings Transaction Tax – and this is a way of raking in more revenue. Housing markets work best when buyers and sellers at any price level can complete transactions at reasonable costs – anything which artificially puts up these costs doesn’t help the market or anyone involved in it, or reliant on it. Personally I think “buy to letters” will probably still buy in reasonable volume, and the losers here will be tenants in the private sector – with landlords putting up rents to recover these extra costs”
July 9th, 2015
Some folk just love to party! And there were plenty of those at the Silver Shindig in May. This dinner dance, sponsored by Solicitors for Older People Scotland (SOPS) was held in The Hub in Edinburgh, which proved to be a most popular venue. A good turn out of guests enjoyed top quality food with lively chat at every table. Spirits were high in the company though, and some rowdy Scottish dancing followed to the music of Callanish. Many of those attending were introduced for the first time to the activities of SOPS working in partnership with Age Scotland – great for getting the message out. Best of the lot, the event raised a super total of just over £16,000, for the charity – all to be used to improve the lives of our older people. What’s not to like about having a great night out and doing some good as well?
July 9th, 2015
Member firm Caesar and Howie is known as a steady and reliable outfit. But some of the partners and staff have a side to them which could only be described as a wee bit crazy. Who in their right mind would want to jump of the Forth Rail Bridge? Well Alison MacPhee , Lizzie Douglas, and Michelle Dixon of Caesar and Howie would - that’s who. They call it abseiling of course but it still involves jumping off a very high structure on a cold windy morning when most sensible people would be at home reading the papers. But these three don’t do sensible – and they all completed the task with some style. They actually even reported back that they had enjoyed themselves – although the writer understands this message was sent after some sustenance had been taken in a nearby hostelry. Well deserved mind you! Not content with proving what they were made of, our trio also managed to raise £2,051 for Age Scotland. Well done ladies! You have put all of us paper readers to shame!
February 4th, 2015
Evidence continues to be taken in Holyrood over the proposed new assisted suicide law. Most commentators seem to think that the bill is likely not to make progress. Certainly the Government does not support a change in the law.
However what is clearly happening is that the issue of assisted suicide and end of life issues generally are getting a lot more media coverage at the moment. Those giving evidence are widely reported and frequently background stories on assisted suicide elsewhere are brought into the mix. The latest of these was the sad story of the cousins who travelled abroad for assisted suicide apparently their desire for it having been induced by their fear of being separated.
With all this coverage it is perhaps appropriate to look again at an “end of life” approach in Scotland and to differentiate it completely from assisted suicide.
In Scotland an adult with capacity has the right to refuse medical treatment. It would appear that increasing numbers of people want to take control of the end of their lives, and to control what medical treatment they wish to receive or not receive where death is imminent. Refusing treatment is not suicide and medical practitioners not administering unwanted treatment is not assisted suicide.
Of course when death approaches many folk will in their last days become unconscious and not be able to communicate. Increasing numbers of clients of member firms of Solicitors for Older People Scotland are choosing therefore to make their refusal of treatment wishes clear in a written document called an Advance Directive. Typically an Advance Directive will state a person’s wish not to be resuscitated after an incident of heart failure if death is clearly imminent. It will probably also state the patients wishes not to be given other treatments which may only prolong briefly a life which otherwise would end naturally and quickly. These are important personal decisions which everyone has a right to make in law as it currently stands.
The existence of an Advance Directive stating clearly someone’s end of life treatment wishes can and does remove a lot of distress from other family members. Being in discussion with doctors at such a time is difficult but huge comfort can be often be found if everybody realises what is happening “treatment wise” accords with what the patient clearly wanted.
So people in the current law have significant rights which they can use to model how their death may happen. It is however important to realise that this area of the law is far removed from the concept of assisted suicide currently being debated at Holyrood.
September 3rd, 2014
- Concern over adviser awareness of new standards introduced in January 2014
The Equity Release Solicitors’Allianceis issuing an alert to intermediaries and advisers to be fully aware of the new legal safeguards introduced earlier this year. This is due to concern that as the market experiences strong growth, intermediaries who do not advise on equity release regularly or are new to it, may be entering the market not fully aware of the requirements.
Recent industry data (Equity Release Council) shows that the equity release sector has experienced soaring levels of business this year, with over 10,000 new customers in 2014 so far, and £641.2 million of plans written in the first half of 2014, a record level and 34% increase on 2013.*
The legal requirements introduced on 1st January 2014 by the Equity Release Council provide enhanced protection for consumers and have been widely welcomed. They require that all solicitors arrange a face to face meeting with customers during the advice process, and that customers must sign the solicitor’s certificate. This has presented a new way of working for many advisers and solicitors.
Claire Barker, chairman of ERSA said,
“The new requirements have tightened up the advice process for clients and advisers, providing greater certainty and peace of mind for both, something that is essential for a financial product that is potentially used by a client for two decades or more. The requirement for customers to not only meet with a solicitor but also sign the solicitor’s certificate adds an extra layer of safeguarding and should reduce potential disputes at redemption.
“Eight months into the year, we believe that advisers and solicitors are getting used to the new requirements but we are concerned that as the market expands rapidly, and new advisers may be entering the market for the first time in a while or at all, that all advisers are reminded about them. Advisers and solicitors both play a vital role in ensuring this and by working together using the standards set by the industry body The Equity Release Council, the continued success of the sector will be assured for homeowners and intermediaries.”
David Borrowman of Solicitors for older peopleScotlandcommented
“Equity release is a growing market – this new record lending is no real surprise. Equity release products are becoming a key part of the retiral planning of many people. The simple fact is that other sources of retiral income are being squeezed whilst at the same time many householders since the seventies certainly have been fortunate to build up equity in their homes. For many it makes good sense to access that capital and improve lifestyles in later years. I do believe however that proper financial advice is a must for people in retirement – and if someone is considering taking out an Equity Release product they should take independent advice from a suitably qualified ER adviser. We find that clients who take good advice and access a suitable product generally are delighted with the positive change to their lives releasing some extra funds brings for them”
For more information on Legal Standards in Equity Release visit www.ersalaw.co.uk
August 19th, 2014
Many Scottish couples are lucky enough to enjoy long and happy marriages and to have children. Most of us take great pleasure in enjoying watching our children grow and develop and we share their successes and sometimes the pain of their difficulties. This is all part of the enduring tapestry of family life.
However as the saying goes “all good things must come to an end” and the simple truth is that we will all die sometime. Death is the respecter of nothing and will strike the happiest of couples, bringing pain and unhappiness to the survivor. There is no certainty that couples will die close together in time. Consequently it is quite likely that a widow or widower may face the possibility of many years of life on their own. Some cope very well with this. But for others loneliness is a severe problem and consequently many older people seek companionship and friendship from others of a similar age.
Inevitably therefore as time passes new relationships spring up and may develop into strong and significant partnerships. Parties may even decide to live together and many of us will know couples enjoying a happy “second” relationship.
This is all good news of course. However it is also the case that many folk entering a second informal relationship of this type do not realise that there are potential legal consequences flowing from that relationship. A potentially very major consequence is that cohabiting in this way gives each party a claim on the other person’s estate at death should that person die without making a Will. Any such claim must be lodged at court within six months of the death. The court has discretion to make an award of a capital payment or a property transfer to the claimant. The court must consider various different factors including the duration of the cohabitation before deciding if a claim should succeed but there is no set guidance as to what level of award is fair or reasonable.
Consequently “cohabitation” may have quite unintended consequences. Let’s say a widow with adult children is a house owner and has some savings. Dying without a will would result in the children inheriting everything. However, what if she strikes up a friendship with a widower who has no property; she cohabits with him, and then dies without making a Will? That widower can make a claim on the estate which will reduce the children’s inheritance if an award is made. Did the widow realise this could happen? Did she want it to happen? That claim and a possible family dispute would have been stopped by writing a Will.
Also consider the possibility that this particular widow has a pension entitlement which has not yet been received. Maybe she is under 65 or has chosen to work on a bit and not draw her pension on the first date due. Should she then die it is quite possible that the trustees in the pension scheme might take any cohabitation into account before deciding to whom to pay for example a lump sum due. Again a payment to the new cohabitant could be made restricting an entitlement of the children. Pension schemes can be a bit of a “moveable feast” here because of the discretion trustees normally have. It is therefore important for older cohabitants to be aware of these possibilities and to update their pension scheme trustees with a clear note of their wishes. Do they want any payments to include or exclude this new cohabiting partner?
The issue here is preparing for the future – all older people should take advice and plan for the future so they know their wishes will be followed. Cohabiting with another party is only one of a number of matters which can affect succession rights. Sadly many people prefer not to think ahead to contemplate their own death – they think “everything will work out fine” and prefer not to address the subject. Sadly split families, second families, and informal relationships are now very common and in these situations things very often do not “work out fine”. So our message to older folk is – think about the relationships you have and what you want them to be and to mean. If you intend to cohabit with a new partner – make a Will. You can include that partner if you want or you can do the opposite. But don’t leave matters to chance – that just leaves potential problems for everybody.
July 24th, 2014
There has been quite a lot of press coverage of the fact that the Scottish Government’s version of the “Help to Buy” purchase scheme has run out of money. The scheme closed within 3 months of the financial year starting – with all the money having been utilised.
There has been some political fallout – it does seem fairly daft to give great publicity to a scheme which peters out before it has really got started. Many would be buyers will no doubt be disappointed.
But it is important to note that this was just one limited scheme applying to newly built properties only.
Sandy Macfarlane – mortgage broker at Caesar and Howie explains “I’m all for support to the housing market. However this scheme was fine but of limited scope. I would say it got perhaps disproportionate publicity because it came in out of the blue in a Chancellor’s budget statement”
Set against that it is important to realise that help with deposits is still available to first time buyers inScotland. This is through the LIFT scheme which is much longer lived than “Help to Buy” and one with which Scots borrowers are now probably more familiar.
Under the LIFT scheme interest free deposits are made available from the government via housing associations. New and older properties can be bought – all in the first time buyer price range. Consequently the scheme is much wider – second hand properties can be bought under it. And most importantly – there is no sign of money running out. Funds are still available across the country.
For many buyers a 5% deposit may be required but subject to status sometimes no deposit is needed. It all depends on the applicant and the value of the property.
Sebastian Kedzioraof Caesar and Howie comments “LIFT is a very popular scheme – simple to understand and now with money having been steadily available for several years – better known to first time buyers. It really is a good way to cut mortgage costs on that vital first house purchase. We have bought hundreds of houses over the years on LIFT – mostly for couples. I reckon in the future when these couples are looking back they’ll be really glad for the LIFT helping hand which got them on that all important housing ladder”
Details of the scheme can be found on www.liftmortgage.co.uk
June 6th, 2014
As we age many of us will enjoy living in a safe environment with care and support from loved ones and also if needed from other agencies such as local authorities or private care companies. Certainly as I contemplate my own later years I know I have a supportive network of family and friends close by.
But not everyone is so lucky – and sadly a proportion of older people inScotlandmay not have a support system round them – and even worse than that they may be at risk of harm from others in contact with them. Some also may be at risk from their own actions perhaps as an illness such as dementia progresses giving rise to dangerous behaviours. So for lots of reasons, maybe a dysfunctional family, maybe illness or disability, a number of our older population may need help, support or protection from outside agencies.
The good news is there is in place a multi faceted legal framework inScotlanddesigned to protect those vulnerable people. Just one part of that framework is covered by one Act of the Scottish Parliament – the Adult Support and Protection (Scotland) Act 2007. This act puts in place a protection regime for “adults at risk” – that is those adults who are unable to safeguard their own well being, or are at risk of harm or are affected by illness or disability so as to make them vulnerable to harm.
Basically this act places a duty on local authorities to investigate cases where it may be the case that harm could come to an adult at risk. Various extra powers are given to authorities – such as a right to take entry – to ensure that proper investigations can take place. Thereafter there are powers which can be used in a practical way to ensure the harm does not occur – such as powers to remove an adult from a place where he or she may come to harm – and powers to ban alleged abusers from being with the adult at risk.
To help ensure all relevant agencies are involved the act imposes an obligation on various organisations such as the police, health boards and local authorities to cooperate on matters related to adult protection. At a local level the council must establish an adult protection committee – which is multi disciplinary – to provide an overview of adult protection in that council area.
In short – the Act tries to ensure a “joined up” approach to the difficult and sometimes harrowing issue of vulnerable adults coming to harm for whatever reason.
Anyone can bring to a council’s attention the possibility of someone being harmed. Even anonymous reports will be investigated and to make a report you don’t need to have an involvement with, or be related to the person you think may be at risk.
I actually can’t think of any older person I know personally who may be at risk of harm. I can think of two very frail older people I know well who could come to harm, but they are both well looked after. However – who knows what the future may bring – and even just writing this short article does bring home to me that we all have a duty to look after older people. If any reader has any worries about an older person – there is a system in place which is designed for all of us to use to reduce harm. We shouldn’t be shy about using the system – after all it only needs one phone call.
April 22nd, 2014
Wouldn’t we all love to be young and healthy forever! Sadly it isn’t going to happen. Yet because of fantastic medical advances many of us can look forward to a long life – which is great. However, a fair proportion of us will probably be managing a medical condition in our older years or even a number of conditions. Decades ago this did not happen – people just died earlier.
So older people generally need more medical treatment as they age. But adults have to consent to receive medical treatment – other than in emergencies. And of course some of the conditions older people have to manage or have managed for them may result in a diminution of their faculties. A prime example would be dementia where a sufferer might lose the ability to communicate meaningfully. If that happens then the patient has lost legal capacity and with that the patient loses the capacity to consent to treatment. This is where legally things become a little more complicated for doctors and families.
Where someone cannot consent to treatment doctors can still treat them under the authority of the Adults With Incapacity (Scotland) Act 2000. The doctor first has to complete a certificate stating that in his or her view the patient has lost capacity. This right extends to other medical professionals such as dentists or nurses who have had certain training on assessing incapacity. What is not understood by many families is that without being given prior authority by the patient, no one in the family has an automatic right to influence treatment or give consent to it or refuse it even. In practice one might hope that medical professionals will discuss treatment with close relatives if practical to do so.
However the only way you can ensure that the views of someone closest to you – your spouse for example – will be taken into account in medical decisions about you is to have previously appointed your spouse as your welfare attorney. That changes things for medical professionals – they must by law seek consent from your attorney for your treatment to go ahead. The only way doctors may avoid discussions with your attorney is if it were not “reasonable and practical” to ask for the attorney’s consent. That would almost have to mean for some reason the attorney was not able to be contacted at all or in a reasonable time frame.
If an attorney did not agree a course of treatment then the medical professional proposing it must refer the case to an independent medical practitioner for a second opinion.
I suspect most people inScotlandthink their spouse has automatic rights to decide treatments for their ill spouse who has lost capacity. That is just wrong. Yet I also suspect most people really would want their spouse or a close relative to be able to have a say in how they are to be treated medically when quite ill.
The only answer is to appoint an attorney – and to do so long before illness is even on the horizon. It’s not difficult or expensive to grant a power of attorney – but doing it does give a lot of comfort to many as they know their loved one must be consulted on medical matters if severe illness strikes.
Solicitors for Older people Scotland