Power (of Attorney) to the people!
The English High Court is, once again, breaking new ground in English Private Client Law with a recent decision in the case of Whittaker v Hancock, 2018 EWHC 3478 Ch. The Court held that an executor, who had lost mental capacity, could be replaced in the role by their attorney in order to administer the deceased's estate. The question before the court was whether the attorney's undoubted obligation to look after her mother's property and financial affairs also extended to administering her step-father's estate. Crucially, the original executor was the sole residuary beneficiary of her late husband's estate and, therefore, the Court found the deceased's estate came within the definition of his wife's 'property and financial affairs' meaning it came within the remit of the powers contained in his wife's Power of Attorney.
This is, of course, an English case and is therefore a decision from a legal jurisdiction distinct from Scotland. Nevertheless, it is not out with the realms of possibility (as history has shown) that such a stance south of Hadrian's Wall could eventually influence the legal minds of the Scottish judiciary. As it stands, Scots Law does not permit delegation of an executor's duties which can cause issues should an executor lose their legal capacity. Given this case presents a sensible solution, practitioners here will be keeping a close watch should a similar case come before the Scottish Courts.
If you would like to discuss the possibility of putting in place a Power of Attorney or if you have any questions about your estate in general, please contact our expert Private Client team here at Clyde & Co and we would be delighted to help.
0131 524 2248