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JGM, Solicitor
Category: Law
Satisfied Customers: 12071
Experience:  30 years as a practising solicitor.
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My aunt and her daughter lived in my aunts house in Glasgow.

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My aunt and her daughter lived in my aunts house in Glasgow. My cousin took combined power of attorney for my aunt on 4 November 2009. A couple of years ago, my aunt moved into a nursing home in Glasgow and my cousin stayed on living in my aunts house.
My aunt is in her eighties, she had two daughters. Her husband died in the 1980s.
My cousin has just died and my mother has just discovered that she has been named as a 'whom failing' in the PoA document. My mother did not know she had been included in the document and obviously hasn't signed anything.
My aunt's remaining daughter who is in her late fifties, fell out with her deceased sister 30ish years ago and has not spoken to her since. She has come from Newcastle, where she lives, to Glasgow, to sort our funeral arrangements etc. This may be a red herring.
My question is, is my mother required to carry out PoA duties even though she knew nothing of it, is herself in her seventies, lives in Edinburgh, not Glasgow, and has no wish nor ability to do this? If she is, what do we do now? If she isn't, how do we move the PoA to my aunt's remaining daughter?
Stuart Cairns
Thank you for your question. The position is that your mother can't be forced to be her aunt's attorney. Unfortunately a "whom failing" appointment is possible without the substitute attorney knowing about it, the way the procedure is set up just now. However your mother can simply decline the appointment. The surviving daughter can't have the POA moved to her. If the aunt is mentally capable of making a new power of attorney that should be done. If she isn't, then an application to the sheriff for a guardianship order will be needed. I hope that helps. Please leave a positive rating so that I am credited for my time.
Customer: replied 1 year ago.
Dear JGM
Thank-you for your information. I have a couple of simple follow-up questions:
1. How does my mother decline the appointment? Is there a department or form to do this?
2. Assuming my aunt isn't capable of making a new PoA, would it be her remaining daughter that would apply to the sheriff for the guardianship order and if so, how is this done?Thanks and best regardsStuart Cairns
1. Your mother should write to the Office of Public Guardian in Scotland advising that she is not taking up the appointment. 2. Her remaining daughter would normally be the one to apply for a guardianship order. She would have to instruct a solicitor in Scotland experienced in these types of application to deal with it. Papers have to be drafted, medical reports sought and court procedures involved. Someone not acquainted with the procedures would not be able to deal with this type of application on their own. I hope that helps. Please leave a positive rating so that I am credited for my time.
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