What happens if I can no longer look after my own affairs?

This is a question that faces many people, not least those of us who are getting on a bit. The simple truth is that if you don’t take steps to make sure your interests are looked after before you can no longer make decisions for yourself, then someone can be appointed to make those decisions for you.

This might be your spouse or partner or a member of your family, a friend or a professional (for instance, a solicitor). But it can just as easily be someone from your local authority’s social work department.

That person is called a guardian. When a guardian is appointed, he or she can and will make decisions about your welfare or your financial affairs or both.

You don’t have to be an old person to have a guardian appointed. A guardian may be necessary if:

  • You suffer from a serious illness
  • You have had an accident (such as a car accident or accident at work where serious injuries are sustained), or
  • You develop a debilitating condition or illness such as Alzheimer’s or Parkinson’s disease or some other form of dementia.

An application has to be made to the local Sheriff Court to have a guardian appointed. It can be time consuming and expensive to have a guardian appointed (although, legal aid might be available to help defray the costs).

 

The appointment of a Guardian is a process that’s dealt with through your local Sheriff Court. It can be time consuming and expensive to have a Guardian appointed.

Two medical reports are needed as well as other documents the court needs to see before the appointment can be made.

If someone objects to the appointment, the Sheriff will consider those objections before appointing the guardian. This can slow the whole process down and increase the costs.

If the Sheriff is satisfied that a Guardianship order should be granted, a guardian will be appointed. The Sheriff will also set out the extent of the guardian’s powers.

Some people think they will never need a guardian because their spouse or partner can deal with everything. However, this isn’t always the case, especially when it comes to things like bank accounts. If, for instance, you’re no longer capable of looking after your own affairs and you need to set up a Standing Order to pay for care costs, if the account is in your name alone, your spouse will need authority to deal with this – being a spouse or partner just isn’t sufficient! If you don’t have such authority, the only option might be the appointment of a guardian.

Guardians also need to keep detailed financial records and to submit these every year to the Office of the Public Guardian in Scotland. If a welfare guardian has been appointed, the local social work department will supervise the appointment.

You’ve probably reached the conclusion that being a guardian can be time consuming and expensive and wonder if there are any alternatives. Well, the good news is that all of this can be avoided if you grant a Financial and Welfare Power of Attorney. You get to choose who should make decisions for you and there’s no need to go to court.

We think that all our clients need to consider whether to make a Power of Attorney – whatever age you are. We think that if, by granting a  Power of Attorney, you avoid all the time and costs involved in a guardian having to be appointed, then that’s a good thing.

If you would like advice or simply wish to discuss your options – either for yourself or another family member – get in touch.

This article was taken from our December newsletter

 

Release the value locked up in your property

this article is taken from our December newsletter.

Do you own your own property? Are you over 55? Do you consider yourself “asset rich but cash poor”? Then Equity Release might be just the thing for you.

We’re finding Equity Release is being used more and more by mature people looking to enjoy their lives by unlocking cash tied up in their home.

One of the most popular uses of Equity Release was to pay off an existing mortgage debt. This is usually because the existing mortgage was an interest only mortgage with a capital amount outstanding, but which is low when compared to the value of the property. For people who have no means of repaying the capital in an interest only mortgage, Equity Release might be the solution.

Some people use the funds released through Equity Release to carry out improvements to their property or to pay for a once in a lifetime holiday – or anything in between!

Here are 5 quick facts about Equity Release:

  1. Equity Release is safe – the equity release market has been fully regulated by the Financial Conduct Authority (formerly the Financial Services Authority) since 2007
  2. Equity Release is flexible – today’s products are designed to support customers in different situations. For example, customers have the option to pay back the interest charged each month to avoid the debt increasing. Alternatively, they can create a “reserve” of money over and above the initial release which can be drawn down at any time in the future.
  3. You can’t lose your home – All Equity Release Council(ERC) member providers include guarantees in their equity release plans that let you stay in your own home for the rest of your life.
  4. Your children won’t be a saddled with any debt – Equity Release Council approved equity release plans from providers come with a “no negative equity” guarantee to prevent you owing more than the value of your home should you choose to let the interest roll up rather than pay it back each month.
  5. You can move house – As long as the new property meets the equity release provider criteria, you can take your plan with you to another property.

If you are thinking of taking out an equity release plan or know someone who might benefit from an equity release plan, then you need to find out as much as you can about your options.  So, where do you turn to for advice? Although Equity Release is a type of mortgage, a mortgage broker is unable to provide advice unless they hold a specialist Equity Release qualification. You need to find an Independent adviser who holds this qualification and who specialises in this complex area.

If you would like to find out more, please get in touch.

 

The importance of Notice Clauses in Commercial Leases

this article was taken from our December 2019 newsletter

There are many clauses in commercial leases that practitioners take time to negotiate to ensure that their client is protected. Sometimes clients assume that the Notice clause in the lease requires no discussion and can be “taken as read”. Unfortunately, taking that attitude can sometimes lead to unintended consequences and could be very costly in the long run.

It would be fair to say that when a lease is being negotiated, a lot more attention is given to other key provisions in the lease than clauses covering notices. There are now, however, a number of cases that have been decided where both landlords and tenants have fallen foul of failing to comply with the terms of the notice clause – either because they didn’t properly comply with them or they failed to properly understand their requirements.

It is no longer unusual for there to be a break option in a lease – exercisable on a mutual or, more usually, on a tenant only basis. That being the case, landlords and tenants should afford themselves sufficient time before the trigger date to review the provisions of the Notice clause in order to identify any issues that might affect the ability to exercise the notice and bring the lease to an end.

The party wishing to exercise the option should check that it has complied with all of the conditions of the lease thus far (and these might not be contained in the Notice clause) otherwise even if they do serve the notice properly, they might discover it is invalid. If the notice is in relation to a break option, for instance, and the tenant wishes to bring the lease to an end, then even if the notice is properly served, the failure to comply with another condition in the lease may cause the notice to be invalid and that will mean that the lease will continue and the option to exercise the break option will have been lost. This could prove very expensive to the tenant.

On the other hand, from the landlord’s perspective, if a break clause doesn’t clearly set out the procedure and conditions relating to Notice and compliance with all of the conditions in the lease, then the landlord may find that the tenant can exercise the break option even though it has been in breach of other conditions in the lease.

There is an important aspect of Notice clauses that’s often overlooked and that’s the lack of any requirement for the landlord to acknowledge receipt of the Notice. This would mean that if an error has been made in the Notice process, the tenant might not discover that the error has been made until it is too late to do anything about it. Perhaps we will see the requirement on the recipient of the Notice to provide an acknowledgement creep into future commercial leases to put the matter of receipt of Notice beyond doubt (although whether acknowledging receipt alone will cure any defects in the service of the Notice will be something of a contentious issue!).

There is also a degree of uncertainty about how the courts will interpret the notice clause with some judges taking a more commercial approach with others taking the literal view of the terms of the Notice clause.

To be absolutely sure, the party serving the notice should comply in full with the terms of the notice clause to ensure that the notice takes effect.

The simple, straight forward things should be checked. When a notice is required to be served, review the details of the party on whom it is to be served. Has there been any change of name or, if the Notice clause provides for services at a Registered Office, then is the registered office still in the same location as it was at the commencement of the lease?

The method of service is also critical. There’s no point in hand delivering a Notice or having it server by Sheriff Officers if the only provision for service of the Notice is by first Class Recorded Delivery mail, as is usually the case. Failure to serve Notice by this means will render the Notice served by any other means invalid and therefore unenforceable.

Check your time limits within which Notice is to be served and give sufficient time to review the other terms of the lease to ensure that there isn’t an existing failure or breach which could invalidate the Notice.

It would be remiss of us not to mention tacit relocation, a principle that applies in Scotland where neither then landlord nor tenant has given notice of termination of the lease prior to its termination date. This means that if the landlord or tenant fail to give more than 40 clean days’ notice (complying always with the terms of the Notice clause), the lease will continue for its original term or a further one year (if the lease if for a period of more than one year) without either party having to do anything. This might well serve both parties well, however, if a landlord is expecting the return of the property or the tenant is planning to move out on the termination date, it is important that the lease is properly terminated by giving the appropriate notice otherwise it will simply “roll on” for a further year.

Notice clauses in commercial leases might seem quite innocuous but as we have shown, failure to comply with their terms can have far reaching consequences.

If you would like to discuss any aspect of your leases or have specific issues with regard to Notice clauses you wish to discuss, please call us on the number at the bottom of the page.

John Quinn – the Strength of Team

We asked WQ’s John Quinn to reflect on his trip Kilimanjaro earlier this year in a blog.  We hope you enjoy what he’s written:

I’m writing this from my office in Glasgow where it is warm and I’m feeling reasonably relaxed and happy.  But I’m reflecting on my time in Africa earlier this year, when I was in a tent on the slopes of Mount Kilimanjaro, feeling quite nervous, exhausted and nauseous.   Exhausted because I was trekking up an 5895m mountain, fundraising for St Andrew’s Hospice in Airdrie.  Nauseous because oxygen levels were falling the higher I climbed (at the summit oxygen levels are half what they are at the base).   Nervous because I was five days into a six day climb and about to attempt the final 1000m to the top and I’d been here before.

Five years ago, the altitude and exhaustion  got the better of me and I had to turn back within what felt like touching distance of the top.   This time I made it to the summit.  I was a bit worn out but exhilarated.  Since my return home  I’ve been reflecting on what was different this time to my earlier attempt.  I had trained more and was much fitter.  The group  had chosen a slightly longer route to the top, to help acclimatise to the falling oxygen levels. There was more to it than that however.

We all hope to come away from a personal challenge with some life lessons.  For me, the biggest lesson I learned on the mountain was the importance of good leadership and the strength of team.

the Strength of Team

Of the eighteen of us who started the trek, fifteen made it to the top.  That was a significantly higher success rate than on the previous trek and everyone, including those that didn’t quite make the summit, achieved great things. We all encouraged each other, we were tolerant of our moments of weakness and we all made a big deal of trying to help each other.  Simply asking each other if we were all right made a huge difference. It meant you never felt alone.   We worked as a team.  We waited, we encouraged, we slowed down, we gave each other confidence that we could achieve things together. We encouraged each other to celebrate our strengths and acknowledge our weaknesses.  It was a fantastic experience from that point of view.

Managing Expectations

Our guide Joe, was a master at managing expectations.  Working closely with our team leader and doctor, at the end of each day we were briefed on what to expect the next day.This was more than just times, distances and routes.   We were all made aware  what was expected of us individually and we all knew what was expected of each other.  We were expected to be awake on time and be organised. The importance of fuelling our bodies was emphasised and re-emphasised and everybody felt a personal responsibility to the group not to falter for failing to eat or drink enough.  If Joe called a five-minute break, it was clear you had to do everything you needed to do in that time and be ready to get going again.   His experience of climbing the mountain meant he could manage our expectations of what would happen to us. He told us we were going to feel terrible at times, that everybody would run into these difficulties and that we could overcome all of them.   He gave us a sense of perspective ahead of potential difficulties.  He told us we would probably feel so bad at times we might want to turn back, but if we did that then we’d still feel no better but would be going down rather than up.   All of that advice really helped me and , I am sure many others.

We got to the top and we got there together.  The biggest difference between this attempt and my first wasn’t me, it was with the people I was climbing with.  I was constantly nervous that I was going to fall to pieces again, but I didn’t.

A Premium On Positivity

I returned from Africa with memories of a sunrise seen from the top of the continent’s highest mountain.  But more importantly, I returned with a heightened sense of the value of good leadership, of the premium we should place on positivity, of the importance of managing expectations, that sharing knowledge is empowering and, most importantly, of the strength of team.

Meet the Staff – Irene McGraw

In our latest ‘meet the staff’ profile, we speak to solicitor Irene McGraw, who joined us earlier this year to work in our Private Client Department.

Irene McGraw

Tell us about your journey into law?

I grew up in the south side of Glasgow and when thinking about a career I narrowed it down to law or accountancy, but the more I thought about it, the more I realised I didn’t fancy looking at figures all day long.  I applied to Glasgow University and Strathclyde University and got accepted to both and then couldn’t decide which one to attend.  The advice I got was that both were equally good so I opted for Strathclyde because I could get a direct bus to the university from home!

Did that turn out to be the right decision?

Of course!  I loved my time at Strathclyde and would always recommend it.  I do remember when I was applying for jobs after graduating that there were some firms totally perplexed that I’d not opted for Glasgow and I’m sure that cost me an interview or two.  But it also helped me realise the sort of firm I wanted to work for were the ones more interested in people than places.

How did you end up in Private Client?

I’ve been a general practitioner for most of my career, although in the last decade I’ve worked primarily in conveyancing – buying houses –  and Private Client – wills, powers of attorney and executory – work. I really like dealing with people and I used to get a big kick out of phoning clients to tell them they’ve been successful with an offer they’ve made on a property.   Now I concentrate on Private Client work, which allows me to get to know more about my clients and it can be very fulfilling helping families sort out estates at a really difficult time in their lives.

What does a typical day involve in the Private Client Department?

There is a typical day but never a typical client.  When I’m writing a Will, every client has different wishes and different needs, so I must work out how to present that in a document that will give them a voice after they have passed away.  Executry work, which is the process of carrying out the instructions in a will and winding up an individual’s estate can be a time consuming and emotional experience for people, so that needs careful consideration.

We imagine there must be some detective work in finding all the people named in a will – you must have some interesting stories?

Sadly, I have never been up the Amazon in a canoe looking for a beneficiary!  The real detective work comes when somebody hasn’t prepared a Will or doesn’t have immediate family and we must track down the people entitled to a share of an estate.  That occasionally can involve Private Investigators, but thankfully if a Will has been prepared properly and updated regularly, we don’t have to go to extreme measures.

What are the challenges facing the profession today?

With Private Client, the biggest challenge has always been the same – getting people to engage with the concept of their eventual death and prepare for it.  Not having a Will in place can further compound a spouse or a child’s grief and it is so straightforward to prevent it.  Whether you are 16 or 116, the best time to prepare a Will is right now.

What do you do to switch off away from the office?

Like many women, I took a career break to have a family and now I have three beautiful granddaughters aged three, seventeen months and four months, so I get a great deal of pleasure out of spending time with them.  I like walking, which these days usually involves pushing a pram around a park!  I also like reading.

What are you reading right now?

Adam Kay’s “This is Going to Hurt – Secret Diaries of a Junior Doctor”.  It is very funny, very dark and very well written.

Any final thoughts for us?

Just to repeat the most important message of our conversation – whether you are 16 or 116, the best time to prepare a Will is right now and I’m here ready to help!

Charity Golf Day raises £3969 for St Andrew’s Hospice

Wallace Quinn’s annual Golf Day has raised £3969 for St Andrew’s Hospice in Airdrie.  The event took place at Cumbernauld’s Dullatur Golf Club, with Wallace Quinn suppliers, referral partners, clients and associates entering teams of four for the ‘Stableford’ format competition.

Teams from Aspen Solutions, Bellway (West), Bellway (East), Campbell Dallas, David Baxter, Dawn Homes, First Scottish, Lexus UK, Penworth Properties, Professional Office Supplies, Smart Group, St Andrew’s Hospice, Wallace MS and Wallace Quinn.

2019 Golf Day Winning Team from St Andrew's Hospice

2019 winning team from St Andrew’s Hospice

This year’s winning team was St Andrew’s Hospice, with team members Gerry Burns, Andy Clark, Cameron Hood and Roddy Porter posting a final score of 88 to take the overall title.

Second place went to Jim Harkins, Andrew Martin, Sandy Birnie and John Donnelly playing in team ‘Smart Group’ with a score of 83.

Third place went to Martin Egan, Graeme Matheson, Ian Mahon and Tom Lawrie from team ‘Dawn Homes’ with a score of 80.

The ‘nearest the pin’ competitions on holes 1, 5, 12 and 15 were won by Cameron Hood (St Andrew’s Hospice), Douglas Allan (Campbell Dallas), Gerry McGrath (David Baxter) and Gus Gilmurray (Professional Office Supplies) respectively.

The ‘longest drive’ competition was won by Gordon Lowrie of Team David Baxter.

'Longest Drive' winner Gordon Lowrie receives his hamper from Bellway Homes' Iain Allison.

‘Longest Drive’ winner Gordon Lowrie receives his hamper from Bellway Homes’ Iain Allison.

There was also a charity auction, with lots including a four night trip to Spain (donated by Wallace Quinn), a 4-ball golfing experience at Mar Hall (donated by First Scottish), a 4-ball golfing experience at the Carrick (donated by Linear UK) and the weekend hire of a sports car (donated by Lexus UK).    Raffle prizes included vouchers for Glasgow’s ‘the Ivy’ restaurant (donated by Denovo).   Our thanks also to Bellway Homes Scotland (East) for sponsorship of the 15th hole and to Millbank Decorators for making a donation after being unable to enter a team.

Wallace Quinn Managing Director John Quinn says,

“It is always great to be able to enjoy the company of clients and colleagues away from the office and our annual golf day is a highlight of the Wallace Quinn calendar. Wallace Quinn has been supporting St Andrew’s Hospice with fundraising activities since we first opened for business and it an association I know will continue for many years.   The Hospice does a remarkable job of helping individuals and families when they need help the most and it is a real privilege for us to be able to assist in any way we can.”

The money raised will go towards the ‘Capital Appeal’, a nine million pound fundraising drive to reconfigure and refurbish the hospice in Airdrie.

2nd place team from Smart Group

Karen McFadyen, Capital Appeal Director for St Andrew’s Hospice says,

“Significant changes in how hospice care is delivered is a key factor in our major refurbishment programme and will ensure we can continue to provide safe and quality care for the next thirty years.  The equipment and facilities needed to deliver modern hospice care have considerable changed since we opened in 1986 and take up much more space.  Refurbishing the Hospice will allow us to stay in our current home and continue to care for the patients of North and South Lanarkshire and make our Hospice fit for the future. The upgraded building will enable us to increase the number of single bedded rooms than we have at present, which will allow us to ensure privacy for patients and their loved ones.”

Well done to everybody for taking part and, as always, our deepest respect and admiration to all the staff and volunteers at St Andrew’s Hospice for their remarkable work.

3rd Place team from Dawn Homes

3rd Place team from Dawn Homes