B AND G PARTNERS, pursuers AGAINST H, defender [2014] ScotSC 94 (21 October 2014)

B AND G PARTNERS, pursuers AGAINST H, defender [2014] ScotSC 94 (21 October 2014)

Mrs B’s Power of Attorney, when read in context and considering statutory checks and the deed’s content, clearly expressed her intention to create continuing and welfare powers. The statutory requirements of ss.15(3)(b), 16(3)(b), and 16(3)(ba) were met. A specific statement is not always necessary; the deed’s wording and circumstances sufficed for validity. The Power of Attorney is not invalid under s.18.

Citation
[2014] ScotSC 94
Parties
Pursuers: B and G Partners; Defender: H
Jurisdiction
Scotland
Judgment Date
21 October 2014
Procedural Posture
Summary Application (adults With Incapacity) / Interlocutory Decision on Validity of Power of Attorney, Prior to Proof
Outcome
Defender’s second and fourth pleas-in-law repelled; case appointed to procedural roll for further procedure; all questions of expenses reserved.
Legal Topics
Powers of Attorney, Adults With Incapacity (scotland) Act 2000, Statutory Interpretation, Validity of Legal Documents
Mental Capacity Law Elder Law Family Law Powers of Attorney Adults With Incapacity (scotland) Act 2000 Statutory Interpretation Validity of Legal Documents

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Parties

B and G Partners

Pursuers

H

Defender

Procedural Posture

Summary Application (adults With Incapacity) / Interlocutory Decision on Validity of Power of Attorney, Prior to Proof

Legal Issues

  1. 1 Whether Mrs B’s Power of Attorney complies with ss.15(3)(b), 15(3)(ba), 16(3)(b), and 16(3)(ba) of the Adults With Incapacity (Scotland) Act 2000
  2. 2 Whether the Power of Attorney is invalid for lack of specific statements of intention or determination as required by statute

Ratio Decidendi

Mrs B’s Power of Attorney, when read in context and considering statutory checks and the deed’s content, clearly expressed her intention to create continuing and welfare powers. The statutory requirements of ss.15(3)(b), 16(3)(b), and 16(3)(ba) were met. A specific statement is not always necessary; the deed’s wording and circumstances sufficed for validity. The Power of Attorney is not invalid under s.18.

Court Disposition

Defender’s second and fourth pleas-in-law repelled; case appointed to procedural roll for further procedure; all questions of expenses reserved.

Orders

  • Repels Defender’s second and fourth pleas-in-law.
  • Appoints cause to procedural roll of 20 August 2014 to determine further procedure.