The thinking behind the new initiative is that a lot of harm to society arises from the taboo stopping us discussing death openly.  This harm manifests itself in many ways from the inability to communicate comfortably with a friend or work colleague, who has suffered bereavement – to families becoming involved in legal disputes because someone died without making a Will.  We even seem as a society to have difficulty communicating with people who are dying.  One terminally ill speaker, at the launch, explained how a number of her best friends had simply stopped contacting her once they know she was ill.

The new group believes that a new open approach, to death dying and bereavement, will hopefully help educate people to behave a bit differently and to deal better with all the issues involved round death, whether with friends or families or in the workplace.

Caesar and Howie support the aims of Good Life Good Death Good Grief.  Managing Partner David Borrowman commented “I think the group’s aims are laudable and cover many aspects of life.  But, just taking the legal issues involved there is no doubt whatsoever, that families cope much better with adverse events if some basic legal preparations have been taken.  Frankly, every adult should prepare a Will, a Power of Attorney and an Advance Directive, which is a statement of their treatment preferences in the last stages of illness.  If everyone were to take these simple and cheap legal steps much distress and difficulty and unnecessary expense for families would be avoided.  And remember, many pensioners in Scotland can get legal aid for Wills, Powers of Attorney and “living wills” so there may be no expense involved at all”.

I try to encourage everyone to make these views clear and to take the basic legal steps they need to take, to ensure that family and loved ones better survive the adverse effects that death and serious illness bring to a family.  It really is simple – a couple of visits to a lawyer will be enough to get in place a power of attorney, a will and an advance directive – three vital “family care” documents all individuals should complete.  Very simply appointing someone to be your attorney by completing a power of attorney assures if you lose legal capacity through illness someone has legal authority to look after your affairs.  Without a power of attorney a guardian would have to be appointed in a court action which really should be avoided at all costs because of the stress and expense involved – the last thing any family needs when one family member has been struck down by serious illness.  Making a will ensures your property goes where you want it to go – not where the state says – which might not be what many people want.  For example, many folk don’t believe that a surviving spouse may not automatically inherit the family home – but that is the true legal position where there is no will.  Finally, an advance directive is a written instruction to your doctors and carers as to how you want to be treated in the last stages of an illness – when you are unable to communicate.  Spelling out your wishes to your family in advance like this gives them the confidence to make “end of life” medical decisions in accordance with your wishes – and spares family members the worry and possible guilt of perhaps feeling they had made a decision you might not have wanted.

It is just not difficult or expensive to get these documents in place.  And perhaps the best news is that probably about 70% of Scottish pensioners qualify for “Legal Advice and Assistance” which means they can get these documents done either free or at a subsidised cost.  That scheme can be easily accessed by people of pension age – in fact a telephone assessment can be done in minutes – so clients will know right from the outset whether they can get the work done free or at a reduced cost.

So please don’t put off decisions – get these basic family care documents in place.  Phone 01506 815900 for a legal aid assessment – it really is easy.

Many people seem to assume the best friend or spouse can carry on doing things for the ill person.  But the truth is in Scotland legally they can do nothing – yes nothing.  Even a spouse inherits no legal powers to do anything  for  an incapacitated partner.  This does not seem to be widely understood.  Where someone is so ill as to be legally incapacitated nobody has powers to do anything – unless these powers are granted by the local sheriff court following a court action – or unless some limited powers are granted by the Public Guardian – a public official responsible for a range of legal matters relative to adults with incapacity.  So sadly many families are faced with going to court to have the court give even a spouse powers to deal with the affairs of his or her partner – assuming say the partner is incapacitated by for example a stroke.

Going to court is a bit of a daunting prospect for anyone – and even more difficult perhaps when the family is dealing with the illness in the first place.

But the good news is – with just a little foresight and forward planning – all this hassle for families can be avoided.  That spouse\carer\ best friend can be legally appointed as the person’s attorney – provided the appointment is made before the illness causing the incapacity strikes.  Once appointed as attorney the best friend will have all the legal powers granted in the document appointing him or her  – which is called a Power of Attorney.  Usually that will mean the attorney will have automatically and legally all the powers necessary to look after and make decisions for the ill person. 

With so many of us living longer and experiencing debilitating illness it is just good sense to appoint an attorney.  It is actually a very easy process maybe needing one or two visits to a solicitor.  So make that friend\carer or spouse your attorney as well – it will save so much trouble should illness strike.  And the very best news for older people is that most pensioners – even householders with up to £25000 savings can still get legal aid to get their Power of Attorney put in place.

Now the Law Society of Scotland has joined the debate and warned that cuts in the legal aid budget would threaten the public’s access to justice.

One little known feature of the Scottish Legal Aid system is that it is relatively generous to pensioners.  Through the “Advice and Assistance” element of the legal aid system, about 80 to 90% of Scottish pensioners can have basic legal work done absolutely free or at a significantly subsidised cost.

David Borrowman, of Caesar and Howie is worried that this aspect of the system may change.  “I really hope that whatever changes come to the system this relative generosity to older folk stays in place” says David…“A key document every older person should prepare is a Power of Attorney, appointing a trusted friend or relative to look after their affairs should they become unable to themselves.  We prepare lots of these free to the client because of legal aid and I would hate to see that benefit removed.  Apart from anything else the cost of dealing with incapacity would go up because the less Powers of Attorney that are written the more court applications for guardianship there will be.”

David’s advice to pensioners and to those involved in pensioners groups is simple.

“Pensioners should act now – the three key family care documents, a Will, a Power of Attorney and a Living Will can all be done on legal aid.  Do them now – don’t’ wait.  If this benefit is cut you will be too late.”

However, this year the Scottish Legal Aid Board have already intimated an increase in civil applications of 24%.  This and the certainty of government cuts to come could mean that this generous benefit to pensioners could be under threat in the future.

David Borrowman, Managing Partner of Caesar and Howie, states “We believe  probably over 80% of Scottish pensioners could have their affairs put in order either free or at a significantly subsidised cost using legal aid.  Having these documents in place is massively helpful to families.  Powers of Attorney in particular, can save families the stress of court actions should a family member become unable to look after themselves.”

It is possible however that legal aid will be less easy to get in the future.  David continues “I understand the Scottish budget is protected for this year but will not be after that.  I hope legal aid is ring fenced since it helps the more vulnerable in our society – but who knows what may be cut in the future.  My advice to senior citizens is to act now – get these family care documents done whilst legal aid is available.”

 “Where a family member becomes incapacitated, many families have to have someone appointed as guardian to look after the affairs of the incapacitated person.  It is not widely known that The Scottish Legal Aid system is very generous when it comes to granting legal aid for guardianships.  The vast majority of persons in need of guardianship are entitled to free legal aid and if a welfare appointment is sought at the same time, this is without any financial test or qualification.  This legal aid will pay for all of the costs incurred in applying for guardianship and intervention to deal with the welfare, assets and income of the person who is incapacitated.

Whilst I think that is a great system and one we should be proud of in this county, I think not enough people know about this entitlement.  Many thousands of pounds can be saved by using a solicitor geared up for legal aid for a guardianship action.  What’s even better is that there is virtually no delay in legal aid being granted in these cases – so no time is lost”.