About Kathryn Bready

Kathryn graduated from the University of Glasgow in 2005 with an Honours Degree in Law with Italian Language, having spent one year of her studies as an ERASMUS student at the University of Bologna in Italy. She then undertook her Diploma in Legal Practice at the University of Dundee. Kathryn joined Mitchells Roberton as a trainee in 2007 and has been with the firm ever since. She works in the private client department specialising in succession issues, the administration of trusts and executries and managing the financial affairs of adults with incapacity. Kathryn expertly prepares Wills and Powers of Attorney. She is entirely client focused being consistently aware that she may be dealing with clients who are fragile due to a bereavement or other tragic circumstances. Kathryn also assists in the firm’s business development. Kathryn is part of a close extended family, enjoys socialising with family and friends and travelling. Kathryn used to sing in a band but decided to progress with her legal career rather than audition for X factor.

Powers of Attorney – Increasingly vital – A Cautionary Tale

A  Will means that after you have died your affairs will be administered in accordance with your wishes and not just as the law dictates, but ask yourself what would happen if you were laid up temporarily or permanently by illness or accident? Who would pay the bills, do the banking and cover the many other financial transactions we all have to do as part of daily life. Standing orders and direct debits only go so far, but what if there is no one who knows how to check them? Moreover, if important medical or care decisions arise -which course of treatment- which operation- who makes the decision if we are not capable ourselves?

 Here is a cautionary tale.

A  gentleman in his later years was admitted to a Glasgow hospital after a fall. A successful operation put right the broken bones and a slow and lengthy hospital convalescence followed. Some months later the gentleman was ready to be discharged as his fractures had completely healed. Regrettably, however ,  through an entirely separate illness his mental powers had deteriorated  whilst he was resident in hospital,  such that he was no longer capable of taking decisions.

It was clear that the patient could not stay on his own and required to go into care. His family found an excellent Residential Home which had a room immediately available, so it appeared a satisfactory outcome had emerged to the trauma which had begun on the day of the fall.

Not so: the problems were far from over .At a practical level, all that was required was for the gentleman to be  taken from the hospital to the Home by taxi or ambulance, only a short distance across the city. Everyone was in favour. The hospital wanted to discharge their patient, the Home wanted to receive their new resident ,the family were desperate for the move of their father to a more appropriate environment and indeed the patient seemed happy enough with the idea.

Unfortunately nothing could happen, in view of the client’s loss of mental capacity. It was here that Mitchells Roberton  were consulted .Notwithstanding that everyone involved in their client’s present and future care wanted the transfer to take place, neither the hospital nor his social worker could permit the move. In the eyes of the law the client had become what is called a “compliant adult” legally incapable of consenting to or disagreeing with the transfer and so had fallen foul of The European Convention of Human Rights ,Article 5 which states :-

“Everyone has the right to liberty……no one shall be deprived of his liberty save…..in accordance with a procedure prescribed by law.”

The Courts in Scotland have interpreted this as meaning that a “compliant adult”, legally incapable of agreeing to one care regime or another, is deprived of his liberty in breach of Article 5. Not only could the patient not be moved, he was strictly speaking being detained only on an informal basis, without consent or authority. There was no consent as the “compliant adult” was unable to provide consent by virtue of his condition and there was no one with the requisite authority appointed “in accordance with a procedure prescribed by law.” In the circumstances for the patient to have been discharged and moved to another care environment would have been quite wrongful, however desirable.

The Courts deemed the appropriate action to be the grant of a Guardianship Order under the Adults with Incapacity Act on the basis that only this way would the necessary safe guards and statutory  and regulatory framework to protect the adult come into play. The family had to petition the Court for the appointment of a Welfare Guardian, in other words a guardian with specific powers to enable decisions to be taken in respect of matters of personal care and welfare such as in relation to residence, which guardian hardly surprisingly  turned out to be the close family member whom the client was more than likely to have asked to be the Attorney in the first place ! Even though pursued as a matter of urgency and with Decree being granted on an interim basis, the matter consumed considerable amounts of time, energy ,expense  and worry.

The problem would have been solved if the adult had at some point in the past granted a Power of Attorney, containing welfare powers, which could have come into force when capacity was lost and would have enabled the client to be moved from the hospital to the Home at the earliest date, on the decision of the appointed attorney.

Obtaining a Power of Attorney is not difficult. We can draft deeds adjusted in accordance with individual requirements and guide clients through the execution and registration processes.

If you believe having a will is important and let’s be honest it’s likely that you do –then you will probably believe a Power of Attorney is a Good Idea. So please take it further and start the conversation about a Power of Attorney. If you would like us to help call Kathryn Bready on 0141 552 3422 or e mail kb@mitchells-roberton.co.uk

Let’s have that conversation about why everyone should have a Power of Attorney!

We can present statistics, production efficiency models, delivery times and accurate numbers of this and that as much as we like, but for each and every one of us the twists and turns of life remain unpredictable apart from the inevitability of eventual death.

Many people understand the need to have a Will but fail to recognise the importance of having a Power of Attorney in place. Let me put it simply, a Will covers a deceased person’s wishes whereas a Power of Attorney is for the living. In short, a Power of Attorney is a legal document which gives another person authority to act and make decisions on your behalf if you become unable to do so.

A  popular misconception is that Powers of Attorney are only for the older generation with conditions such as dementia becoming increasingly common. Indubitably all elderly people should grant a Power of Attorney in favour of a trusted friend or family member to manage their affairs if they were to lose capacity. But Powers of Attorney are not just for our respected older citizens; they are for anyone over the age of 16 in Scotland. An accident or illness could happen at any time causing you to lose the capacity to act on your own behalf and unless you have a Power of Attorney in place nobody has the power to act for you, not even your immediate family, causing potential difficult problems with banks, healthcare providers and other organisations.

If a Power of Attorney is not in place and you lose capacity then application may need to be made to court to give others the legal authority to deal with your affairs, an avoidable, time consuming and expensive procedure.

So we must talk about Powers of Attorney. Whilst making a Power of Attorney may be considered solely a pragmatic, legal move to grant peace of mind, I am fully aware of the emotive issues surrounding such instructions. Who would be the best Attorney? Will other members of my family be upset about my choice of Attorney? Will I be giving up my independence of thought too soon? Can I revoke the Power of Attorney at any time?

We are here to have that important conversation whenever you want. Please just call and ask to speak to Kathryn Bready on 0141 552 3422 or email kb@mitchells-roberton.co.uk

The Importance of having an accurate Will

Solicitors are always advising their clients that it is important to have a Will. If you die without a Will your nearest relatives would have to petition the court to be appointed as your executors which can cause delay and additional costs. Although your spouse or civil partner do have certain rights if you were to die intestate , they will not always receive your entire estate and co habitants and friends have no automatic entitlement to inherit.

However, not only is it crucial to have a Will, but that Will needs to be clearly drafted and contain no ambiguities. This message was recently publically emphasized in an English case. Joan Edwards, a former nurse, who died when she was 90 left her estate amounting to £520,000 to “whichever Government is in office at the date of my death for the Government in their absolute discretion to use as they may think fit.” She died in 2012.

Miss Edmond’s estate was initially divided up between the Conservative party and the Liberal Democrats. The Tories received £420,576 while the Lib Dems received £99,423. The bequest had initially been interpreted to mean that Miss Edwards’estate was to be used as a party donation. But there was an outcry. The former Labour Deputy Prime Minister Lord Prescott said the parties “must hand back” the cash, while Ian Austin a Labour backbencher urged them to “do the decent thing.” Conservative Zac Goldsmith also joined in the criticism saying no one could believe “this lady wanted her money squandered on electioneering.”

Despite the wording of the Will being unclear, Cameron and Clegg ordered the parties to return the funds to the estate to then be passed on to the Treasury. They decided that the wishes of the deceased were paramount and that they did believe her intention was to benefit the nation rather than any particular political party. This was supported by friends of Miss Edwards, a church goer whose career as a nurse included spells as a midwife. Her next door neighbour Lucy Sanders is reported to have said “I would think she would have wanted the Government to do something good with her money, something to do with looking after children as she did.”

So just having a Will is not enough as this case illustrates. It is essential that the wording of the Will reflects the Testator’s intentions without ambiguity. Solicitors in our Private Client Department write Wills for all types of clients with different financial and family circumstances.

If we can help please contact  Kathryn Bready – kb@mitchells-roberton.co.uk

Law is not boring…

I do not think law is boring. It covers everything from embryo to exhumation. It regulates the air we breathe, the food and drink we consume, our employment , education , health and  property . But if I were to refer you to Section 19 of The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2011 you may be forgiven for believing law dull.

But this little piece of legislation is extremely important and essential for the protection of the beloved corncrake now probably only found on the Western Isles of Scotland and Orkney. The corncrake is a brown streaked bird with bright chestnut wings , a short deep bill and strong legs and feet ,ideal for thrusting through tall vegetation where they live. In fact corncrakes are reluctant to emerge from the rough vegetation and so are more often heard than seen, the male singing with a distinctive rasp used to attract females. The bird is a summer visitor to Scotland between April and September thereafter migrating to central and southern Africa in winter.

Over a hundred years ago corncrakes were common in Britain but there are now only a few left. This is due to modern farming methods destroying nesting sites and killing chicks and also adult birds. The Rural Development Contracts (Rural Priorities) (Scotland) Amendment Regulations 2011 sets out conservation schemes which pay farmers  to manage land in a corncrake friendly way.

There are encouraging signs that the number of corncrakes in Britain are slowly now increasing. Legislative measures have saved corncrakes from being an endangered species.

Isn’t law wonderful !