Great Stuart Trustees Ltd v McDonald, Public Guardian [2014] ScotCS CSIH_114 (24 December 2014)

Great Stuart Trustees Ltd v McDonald, Public Guardian [2014] ScotCS CSIH_114 (24 December 2014)

The power of attorney in question is valid as a continuing power of attorney under section 15 of the Adults with Incapacity (Scotland) Act 2000 because the document, construed objectively, clearly expresses the granter’s intention to create such a power, and satisfies the statutory requirements. Section 15(3)(ba) does not apply as the power is immediately exercisable.

Citation
[2014] ScotCS CSIH_114
Parties
First Party: Great Stuart Trustees Limited; Second Party: Sandra McDonald, Public Guardian
Jurisdiction
Scotland
Judgment Date
24 December 2014
Procedural Posture
Special Case / Opinion of the Court
Outcome
Power of attorney held valid as a continuing power of attorney under section 15 of the 2000 Act.
Legal Topics
Continuing Power of Attorney, Adults With Incapacity (scotland) Act 2000, Interpretation of Statutory Requirements for Powers of Attorney
Mental Capacity Law Private Client Law Continuing Power of Attorney Adults With Incapacity (scotland) Act 2000 Interpretation of Statutory Requirements for Powers of Attorney

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Parties

Great Stuart Trustees Limited

First Party

Sandra McDonald, Public Guardian

Second Party

Procedural Posture

Special Case / Opinion of the Court

Legal Issues

  1. 1 Whether the power of attorney granted by Mr JS is valid as a continuing power of attorney under section 15 of the Adults with Incapacity (Scotland) Act 2000
  2. 2 Whether the document satisfies the requirements of section 15(3)(b) and (ba) of the 2000 Act

Ratio Decidendi

The power of attorney in question is valid as a continuing power of attorney under section 15 of the Adults with Incapacity (Scotland) Act 2000 because the document, construed objectively, clearly expresses the granter’s intention to create such a power, and satisfies the statutory requirements. Section 15(3)(ba) does not apply as the power is immediately exercisable.

Court Disposition

Power of attorney held valid as a continuing power of attorney under section 15 of the 2000 Act.

Orders

  • First question (validity under s.15(3)(b)) answered in the affirmative.
  • Second question (validity under s.15(3)(ba)) answered in the affirmative.