Most people in Scotland have a “best friend”. For many our best friend is our partner the person we trust to see to our needs, to nurse us when we fall ill and generally make sure we are looked after. That’s great and comforting for most of us. But what happens if someone falls so ill that they can’t communicate with their best friend and carer? What happens if someone falls so ill that they cannot do anything for themselves and they have lost “legal capacity”.

Many people seem to assume the best friend or partner 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 or civil partner 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.

Now for the good news. With just a little foresight and forward planning all this hassle for families can be avoided. That partner\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 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 many over 60s (even home owners) with up to £25,000 savings can still get Legal Aid to get their Power of Attorney put in place.

As Solicitors for Older People Scotland local members, we are hosting drop in sessions in our offices in Bathgate*, Livingston, Falkirk, Alloa and Bo’ness on Power of Attorney Day where people can pop by to get free information and advice. Over 60s can also come long to check if they qualify to have their Power of Attorney prepared for free under the Legal Aid Advice & Assistance Scheme.

For more information please check our social media pages, email us at enquiries@caesar-howie.co.uk or call on 0800 005 1755.
*Bathgate session will be hosted within Cyrenians, Bathgate (next door to our office) at 27 George Street, Bathgate.

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The Scottish Government are currently proposing drastic changes to the Legal Aid system regarding how solicitors are paid for Guardianship work carried out under the Adults with Incapacity (Scotland) Act 2000.

Guardianship is a court order designed to give family members powers required to act on behalf of younger adults who are turning 16 and are unlikely to be able to make decisions for themselves going into adulthood.

Currently there is a modest number of Scottish Solicitors who offer Legal Aid for this type of work. This means that some, if not all, of the initial “out of court” work required may be covered under Legal Aid and the actual “in court” work itself – which can cost from £4,000 upwards – is non-means tested so it is always covered by those who work with Legal Aid.

Under the proposed changes however it is likely that most, if not all, solicitors in Scotland will be unable to offer large areas of this work under the Legal Aid scheme. This will mean that the fees will have to be paid privately by the funds belonging to the Adult with Incapacity personally if they wish to obtain Financial Guardianship powers i.e. where they own their own homes or have access to other funds e.g. savings etc.

But what if the Adult can’t pay? Well, the burden may fall on their family but what if their family can’t pay? Usually, in those circumstances, the local authority may step in to apply for Guardianship which means important decisions for the Adult may be taken away from the family members and placed in the hands of social work.

So what are the proposed changes which will, if successful, make it almost impossible for solicitors to cover large areas of this type of work under Legal Aid? At the moment solicitors are paid detailed fees by the Scottish Legal Aid Board which cover all of the work that is carried out at the application stage and also the “in court work” which can vary from case to case. The proposal is to move to fixed fees which do not take into consideration many aspects of the work required. There are, of course, some publicly funded Law Centres, however, they will be overwhelmed with cases and unlikely to have the resources to cover all of the hearings required.

Wider implications are equally worrying such as, increased waiting times for the allocation of social workers to address Guardianship – 2.5 years in some areas – and issues relating to those trying to apply for particular aspects of Self Directed Support, which are not possible without Financial Guardianship powers.

We, along with our colleagues in the legal sector and The Law Society of Scotland, have submitted our full responses to the initial consultation and on 2nd of December 2025 the Minister for Victims and Community Safety, Siobhian Brown MSP, announced the Scottish Government would pause the proposed changes to Legal Aid for Adults with Incapacity cases.

The Minister said: “Following careful consideration of stakeholder feedback, I have taken the decision to pause the proposal for Civil regulations that sought to replace detailed fees with block fees for Adults with Incapacity (AWI) cases. Listening to stakeholders and acting on their views is essential if we are to deliver Legal Aid reform that works”

Clearly reform is on the way in some shape or form and we would therefore urge anyone who has been putting off applying for Guardianship for their Adult child to make a start on the process now.

Martin Monaghan is the Head of the Civil Court Department at Caesar & Howie, Solicitors & Estate Agents/Parent Carers Legal Support. He is a Law Society of Scotland Accredited Specialist in Incapacity and Mental Disability Law.

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The charity seeks to restore confidence and make sure that people know they are not alone. The Hub provides victim assistance via a support helpline and fraud prevention education with free online resources to support those navigating the aftermath of cybercrime.

Check it out here: https://cyberfraudhub.org/

Here at Caesar & Howie for sending funds to you we may ask for your bank details at a first meeting or in a first telephone conversation with you. If we do not, we shall only accept bank details in a telephone call made by us to you on the phone number or numbers you have given us. We cannot under any circumstances accept instructions by email to change those bank details – we have to speak to you by calling you.

So far as our bank details are concerned (for sending funds to us), we strongly recommend you do not accept any attempt to change our bank details unless you have spoken in person or by telephone to the member of staff you are dealing with at Caesar & Howie. There is no other safe way. This is for our clients’ protection in an age of increased sophistication of scammers in trying to steal from you.

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Consequently where parents are separated, a parent who goes on holiday abroad with a child must get consent to do so from the other parent or any other person holding parental rights and responsibilities. We would always recommend a formal travel consent be prepared and signed. Please be aware, some countries travelled to, may seek a formal travel consent signed by the parents and/or anyone else holding parental rights and responsibilities.

The purpose of outlining all of this is to avoid various issues we have encountered such as:

• One parent wishes to take a child on holiday to Disneyworld, Florida and the other parent does not wish this to happen or is not told about it in advance. Arrangements are made, flights are booked and at the last possible minute one parent approaches the court for an interdict to prevent that child from going on holiday. It is a very difficult task for a solicitor to convince the court that a child should not be allowed to go on a dream holiday to Disneyworld Florida and such a holiday will probably be allowed unless there are very good reasons not to do so. However, the very fact that the matter has reached court will have caused expense to both parents, and in particular, distress for the child in circumstances where with a little communication and discussion these difficulties should never have arisen;
• Where a parent seeks to take a child out with the United Kingdom and the other parent agrees to do so but the parent and child are unable to travel due to them not having a formal travel consent signed by the other parent to show to officials in the airport;
• Where grandparents of a child wish to take the child out with the United Kingdom. One parent agrees but the other parent does not. Arrangements are made, flights are booked and the grandparents require to instruct solicitors to attempt to negotiate with the parent who does not consent. As no agreement can be reached and the booked holiday is getting closer, the grandparents require to raise court proceedings seeking a court order to consent to the child being taken out with the United Kingdom for a holiday;
• Where grandparents seeks to take a child out with the United Kingdom and both parents agree to do so but they are unable to travel due to them not having a formal travel consent signed by the parents to show to officials in the airport.

The advice is therefore to communicate in plenty time with the other party or parties involved, long before the holiday is booked or even properly planned. In the event of a dispute, the parties can attend mediation to see if this can achieve agreement. Most parents and other parties involved can achieve agreement amicably either by having a discussion or attending mediation.

It is also always best to have a formal travel consent prepared and signed for a holiday out with the United Kingdom where only one parent is taking the child or where someone who does not hold parental rights and responsibilities intends taking the child on holiday.

In the event agreement cannot be reached, the Sheriff Court can be approached in advance for the necessary holiday permission. The court will only grant an order where it considers it to be in the best interests of that child to go on the holiday in question so this is not guaranteed. Court can be costly for parties and should really be the last resort where agreement cannot be reached. Best not to end up here though if it can be avoided.

Call us on 0800 005 1755 or contact us via the link on our home page if you require further help or advice or wish to consider a formal travel consent form.

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What this means in real terms is that buyers are faced with a blind bidding situation where they submit their offer and await the response.

If you have been trying to buy a new house, this will be all too familiar to you. You are trying to buy a new house and the sellers are trying to make as much money from the sale as they can. There tends to be no middle ground. Currently, there are more people looking for properties than there are on the market. This means it is a sellers’ market forcing house prices up and greater competition for the buyers!

How does “Offers Over” work?
Sellers usually engage an estate agent when they are putting their house on the market. The estate agent will view the house and give an indication of expected price. They tend to be guided by the valuation element of the Home Report but any estate agent who is familiar with the area will be able to give the seller an accurate assessment of value.

However, when there is a sellers’ market, the estate agent will know that there will be many buyers trying to buy. So, they will set an asking price to attract interest and advertise the house inviting “offers over” that asking price.

Once a number of buyers have viewed the property and expressed a firm interest in buying, the estate agent will fix a closing date on which all offers are to be received. On that date, interested buyers submit their offer and the seller will discuss this with their estate agent and solicitor and decide which is the best option.

How much should a buyer offer?
This is the hardest question any buyer needs to answer when trying to buy a property in an offers over situation.

First, before you start thinking about price, ask your solicitor to “note your interest” in the property. This will mean that when a closing date is set, the seller’s estate agent will let your solicitor know when that is.

When you are considering the price, there are three elements you should take into account:
• What did the surveyor assess as the value of the house? The Home Report contains a valuation of the property. This is what the surveyor who prepared the Home Report, in his professional opinion, thinks it is worth. However, when there is competition with other buyers, be prepared to pay more.
• How much are you prepared to pay for the house? Clearly, you cannot pay more than you have available to you through your deposit and any mortgage. Do your sums and work out how much you can afford to pay.
• If you are selling your own house, have you sold yet? If you have, you will know how much you will have available after repaying any mortgage you currently have. If you have not yet sold you need to be cautious about entering into a purchase contract, irrespective of the price you decide to pay.
Once you have considered these factors, the best advice we can offer at the closing date is to offer as much as you can comfortably afford!

If you need any help or advice if you are buying or selling a house, please call us on 0800 005 1755 or email enquiries@caesar-howie.co.uk and we will be pleased to help.

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But not having a Will – one that sets out clearly how you want your assets to be divided up – can, and often does, cause terrible family disagreements. Indeed, one of the best arguments for making a Will is that it avoids your loved ones having to argue amongst themselves about who gets what. No-one wants their final legacy to be resentment between siblings, parents and other family members or close friends.

So, what happens to your assets if you never get around to making a Will? It’s complicated, but very broadly it works like this.

Prior Rights
Without a Will, your spouse or civil partner (but not your partner if you are not married or in a legal Civil Partnership) has what is called ‘Prior Rights’. That means that they would inherit the family home (up to a maximum value of £473,000), its contents (up to £29,000) and a cash sum of money – £50,000 if there are children and £89,000 if there are no children.

Bear in mind that, if you have children from a previous marriage, your surviving spouse doesn’t have to pass on any of these Prior Rights assets to your children in their Will. Indeed, if your spouse also has children from another marriage, then those children could inherit those assets leaving your children with nothing. In short, if you want your children to benefit, you need to make a Will.

If you are not married and have a partner (what the law calls cohabiting), unless you have a Will that says otherwise, your partner has no automatic entitlement to Prior Rights or any of your assets. Your cohabiting partner can make an application to the court for a share of your assets, but that is time consuming, involves cost and the outcome is not guaranteed. If an application is not made or is not successful, your estate would go to your children – which could mean your partner has to leave the family home.

Even if your house is in joint names, unless there is a survivorship destination clause in the title deeds (which means the property automatically transfers to the survivor on death), then your children would end up owning half the property with your surviving partner. Again, if you want to make provision for your cohabiting partner, it’s best to make a Will.

Legal Rights
If there are assets left after the Prior rights have been exhausted, then what are known as ‘Legal Rights’ determine how the remaining estate is divided up.

In this case, your spouse or civil partner (again, not a partner with whom you are cohabiting) is entitled to receive one third of the remaining estate, or half if there are no surviving children. Any children also get one third of the remaining estate divided equally amongst them, or half if there is no surviving spouse. But how they agree what parts of that third or half go to whom can be cause of major disagreements. It’s far better to specify in your Will who gets what.

After that, your children, or your closest relatives, are entitled to the remainder of the estate.

Now this is only a brief summary of the law on inheritance (there are lots of potential complications we haven’t gone in to here for the sake of clarity), but there are two conclusions that seem pretty clear. Firstly, make a Will and secondly, deciding what your Will should say probably requires a bit more thought than you might imagine.

If you would like to discuss drawing up a Will or reviewing your current Will, please call us on 0800 005 1755 or send us an email to enquiries@caesar-howie.co.uk

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