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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10917
Experience:  30 years as a practising solicitor.
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Is there something I can do to help my partner who is terminally

Customer Question

Is there something I can do to help my partner who is terminally ill ? He is still married to his "wife" and no one is caring about what he wants . I have been looking after him since he was diagnosed back in May with an inoperable and incurable brain tumor, and now he had a seizure and is in hospital and his family are not allowing me to see him . He had panned on getting divorced and selling his house so that he could try to get better with alternative treatments. He has shared his decisions and opinions with a lot of his friends and a lot of people can confirm this. His family refused to sell so I have paid so far, but now I cannot afford to keep paying. I'm in debt with credit cards and behind with my personal bills. His family have the legal rights over him just now but they are not doing what is best . What should I do ? Is there anything I can do to help him ?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you question. I'm a Scots solicitor and will help you with this. I am sorry that you find yourself in this position.
Is your partner capable of instructing a solicitor to make a Continuing Power of Attorney ? If so that would allow the attorney, you presumably, to manage his affairs without interference. If that isn't possible then you would have to go to court and ask to be appointed as his guardian. A solicitor would have to deal with either situation as there are special papers to be prepared, signed, served and, if a guardianship application, heard by a court.
If your partner is able, he should also make a will in your favour leaving the house to you and any other estate so as to minimise a legal rights or widow's claim after his death.
Note that anything he has verbally expressed to anyone has no legal weight at all. The only options to allow you to take control now are a power of attorney if he is mentally capable or a court guardianship order if he is not.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10917
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.
At this Very moment he is not in the condition to make a decision as he is in hospital. I do not want any of his assets. He is trying to sell the house to be able to try to survive and they didn't agree to it. I don't want any of his money or possessions. All I want is to be happy and he said many times what he wanted . The person that was dealing with the lawyer concerning his requests is not being allowed to see him at the hospital either. So we don't know how to approach this. I have stood by him all along. He has three daughters, one was in Australia when he took ill, one was here and one was in uni in York. The one from Australia came and went back soon after, the one that was here went to London, and the one that was a uni actually had a flight booked to go to Denmark next week. So no one was really planning on looking after him. He wanted to divorce and sell the house and use his share to try to live. How do I go about getting this court guardianship done ? Or if he becomes more aware, what do I have to do so he's able to agree to be his carer ? I take a solicitor to the hospital ? It's a hard situation and am just looking after his interest as I know what he really wants and I don't think is fair that they take advantage of the situation because he is not able to say anything. Thank time.
Expert:  JGM replied 2 years ago.
From what you say, you have to see a solicitor and apply guardianship order. The solicitor will get medical certificates and make the application.
You can read all about a guardianship order here:
http://www.publicguardian-scotland.gov.uk/guardianship-orders
Customer: replied 2 years ago.
In May he was only given 9 months to live though. Is there a way to get this done quickly so that he can do his treatments straight away ? I don't want to start something and then if he doesn't make it ( fingers crossed he will) then there's no point to it as all I'm looking to LIVE the way he said he wanted. And what is needed to be appointed as his guardian ?
Expert:  JGM replied 2 years ago.
The application can take some months. Medical reports are needed and a petition is served on the family and a court hearing assigned. There is no easy way to speed this up other than your solicitor ensuring that there is no delay at any stage of the procedure and making sure the court knows the urgency of the situation.
The general procedures are shown here:
http://www.scotland.gov.uk/Publications/2010/06/28144224/0
However, you should assess whether he could sign a power of attorney at any stage. That is the instant way of solving this.
Customer: replied 2 years ago.
So the quicker way would be to sign power of attorney to me ? Is that's correct ? And I would still have to apply ? Sorry am bothering you but this is really puzzling me . He is terminally ill and there has something I can do to help him out. I don't want anything from him, just to be happy.
Expert:  JGM replied 2 years ago.
You don't have to go down the guardianship route if he is able to sign a continuing power of attorney granting you financial and welfare powers.
A continuing power of attorney would give you the ability to do everything that he could otherwise do . He has to know what he is signing and agree to the grant of the continuing power of attorney.
As I said above, if he is mentally capable you do the power of attorney. If he is not mentally capable you have to do the guardianship application.
Customer: replied 2 years ago.
Well ok. I will try to speak to a solicitor and see what I can do. He might recover from thie seizure and be able to sign . Before although he was ill, he was still able to make decisions and was clear in his thought and opinions. Does the next of kin automatically change once he signs the power of attorney ?
Expert:  JGM replied 2 years ago.
Although the hospital would tell you otherwise, there's no such legal status as next of kin in Scotland. However, the effct of a continuing power of attorney with financial and welfare powers is that the attorney is in control to the exclusion of all others including family members.
Customer: replied 2 years ago.
Thankyou help. And what do you mean about the next of kin ? That's what his family are planning on and doctors always only ask of kin ??? So that counts legally ?
Expert:  JGM replied 2 years ago.
Correct. Next of kin is an English term and has no meaning under Scots law.
Customer: replied 2 years ago.
Thankyou time. I hope I can get this sorted quickly. Is there any advice you can give me on how to get this done ? Any help is welcome. Thanks
Expert:  JGM replied 2 years ago.
Apart from what I've already said, just make sure that the solicitor you choose is experienced in dealing with the law of the elderly. You can ask recommendation from the Law Society of Scotland if you need one.

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