“On 8th September 2014 we introduced a new policy for reviewing accounts.

Solicitors submitting accounts for review will no doubt be aware that our recent and current processing times are lengthy. While we accept that our level of service could be better, it is our experience that the standard of a significant proportion of submitted accounts are incomplete and are not supported with the necessary documentation. These cases require our reviewing officers to spend additional time and effort trying to problem solve, balancing accounts or writing to financial guardians looking for the necessary information.

Therefore, to address issues and help improve our processing times, a new policy will be applied to all accounts submitted after 8th September 2014.

Solicitors are advised that we will be returning all accounts:

• which do not have a completed account form attached;
• that are incomplete;
• that are not in the Public Guardian’s prescribed form. Note that accounts of charge and discharge will no longer be acceptable.

We may also return any/all forms which do not balance (although this will be subject to discretion).

This measure has been taken to reduce the amount of time spent on incomplete accounts and to help improve the standard of accounting submitted. This policy will apply to accounts submitted by lay and professional financial guardians. Solicitors advising prospective financial guardians on their potential role are asked to bring the above information to their attention.”

More on this can be found here.

If you are interested in subscribing to a quarterly ‘Private Client Bulletin’ please email me at: james@legalknowledgescotland.com

The Bulletin will review the latest cases, consultations, legislation, official publications and news items.

HMRC’s August 2014 edition of the Trusts & Estates newsletter for trusts and estates practitioners is now available online and can be found here.

If you are interested in subscribing to a quarterly Private Client Bulletin please email me at: james@legalknowledgescotland.com

The Bulletin will review the latest cases, consultations, legislation, official publications and news items.

The Scottish Law Commission has published a major report recommending substantial reform of the law of trusts in Scotland.

This is from the Scottish Law Commission.

“We publish today our Report on Trust Law.  Despite the prominence of trusts in Scots law, the institution is badly served by existing legislation.  The main statute, the Trusts (Scotland) Act 1921, is almost a century old: its structure and language have become antiquated, and the uses to which trusts are put have evolved over that time.  The Act has been heavily amended over the years, leading to a lack of clarity and practical difficulties for trustees and beneficiaries.  The recommendations in our Report will affect all those who use trusts and our draft Trusts (Scotland) Bill is aimed at providing a modern system of trust law, allowing Scotland to compete more effectively in the global trusts world.”

More on this, including the full report can be found here.

“25 August 2014

Update on Power of Attorney Submissions

There is a waiting period before your power of attorney (PoA) can be processed and returned to you.

• EPOAR submissions: 24 day waiting period, we are working on PoAs received on and around 18th July 2014
• Manual submissions: 27 week waiting period, we are working on PoAs received on and around 21st February 2014

If there is a genuine urgency, we will expedite the registration of a PoA ‘on cause shown’. We ask that people respect this service and only use it in cases of true urgency to avoid defeating its purpose.”

More on this issue can be found here.

Delaware has become the first US state to grant deceased residents’ executors the right to take over their digital assets such as email and social media accounts.   

This is from an article in ars technica.

“While some states, including Idaho and Nevada, have some existing provisions pertaining to limited digital assets for heirs, they are not as broad as the new Delaware law. For now, the state’s version of UFADAA only applies to residents of Delaware, one of the smallest states by population and land area. If other states don’t follow suit soon, people creating family trusts could conceivably use this Delaware law to their advantage, even without residing in Delaware. However, even though many tech companies (including Twitter, Facebook, and Google) are incorporated there, they will not be affected by the new law.”

The whole article can be found here.

A link to an earlier blog on digital assets can also be found here.

The consultation seeks views on jurisdiction and choice of law; wills and survivorship; rights of succession in limited circumstances; bonds of caution and the timescale for a surviving cohabitant to make a claim on a deceased cohabitant’s intestate estate. 

The consultation is open until 7 November.

The consultation can be found here.

This is from OPG Scotland’s website news section.

“31 July 2014

Update on Power of Attorney (PoA) Validity Issue

The Public Guardian has been made aware that the Clydesdale Bank has decided not to pursue its appeal against the decision of the Sheriff at Glasgow. The Public Guardian is conscious that the decision raised a number of issues, including that of the validity of the power of attorney in question. The Public Guardian is in the course of making an application to Glasgow Sheriff Court under s.3 of the Adults with Incapacity (Scotland) Act 2000 in order to obtain directions from the Sheriff on a number of those issues. The procedure to be followed by the OPG should give an opportunity for PoA validity issues to be fully explored. The Public Guardian does not expect to comment further while that application is pending.

Sheriff Baird’s Opinion can be accessed from this link.”

My earlier blog on this issue can be found here.

One of the major weaknesses of the ‘NO’ campaign is its failure to come up with a credible plan for devolving substantial new powers to the Scottish Parliament.  The talk is of “guaranteed new powers” but not one power is ever named nor when it might be devolved.

In response to the criticism they have received on this issue the ‘NO’ parties have this week come up with a ‘”pledge”.

There are a number of phrases in the “pledge” which should worry those who are considering voting ‘NO’ but who want substantial new powers for the Scottish Parliament.

For a start the word “substantial” is never used.  That in itself is telling when you consider how few tax and welfare powers the ‘NO’ parties are even considering for devolving in their latest reports.  Take tax powers.  There are approximately 25 taxes, charges and duties in the UK. The ”NO’ parties are at best proposing that the Scottish Parliament should have more responsibility, but not complete control, of income tax, possible control of another 1 or 2 minor taxes and partial responsibility for 1 or 2 others and a few welfare powers.

To put this into context.  Even after all of the provisions of the Scotland Act 2012 are implemented the Scottish Parliament will only have control of 4 minor taxes, partial responsibility of income tax and almost no welfare powers.

And remember these are just proposals.

Let’s not forget what happened when the ‘NO’ parties last made a huge fuss of looking at this matter.  The ‘pledge’ does actually mention the Calman Commission.  What is does not mention is that not all of Calman’s recommendations were implemented in the Scotland Act 2012.   Only three of the six tax recommendations made it to the Scotland Act 2012.

What is also often forgotten is how few welfare powers Calman recommended for devolving and that it also argued for some powers to be re-reserved.  The UK Government also refused requests by the Scottish Government to add further powers to the Scotland Act 2012. The requests related to corporation tax, excise duties and the Crown Estate.

Then there is the phrase: “the pooling and sharing of resources”.  This and other similar phrases such as “coordinated across the whole of the UK” are used by those arguing against the devolving of substantial tax and welfare powers to the Scottish Parliament. Expect to see comments such as these from a UK Government spokesman if there is a ‘NO’ vote.    

“There are certain levels of autonomy that are inconsistent with the UK. A unified tax and benefit system is at the heart of a united country. If you start dismantling the tax and benefit system then that is inconsistent with a single country.”

Lastly the phrase “as swiftly as possible”.  You can imagine the priority Westminster will put to this issue in the event of a ‘NO’ vote.

More powers, possibly, substantial powers, not a chance.