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Continuing powers of attorney: the doubts resolved

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Continuing powers of attorney: the doubts resolved


05 January 2015

Section 15 of the Adults with Incapacity (Scotland) Act 2000 provides for continuing powers of attorney – that is, powers of attorney which continue to have effect even though the granter has become incapable. In order to be valid, a continuing power of attorney must, by virtue of section 15(3)(b), inter alia incorporate a statement which clearly expresses the granter’s intention that the power be a continuing power.

In Application for Guardianship in respect of W 2014 SLT (Sh Ct) 83, Sheriff Baird considered a power of attorney which stated “I appoint Clydesdale Bank plc to be my continuing attorney … in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000. He held that this did not satisfy the requirements of the Act and that the continuing power of attorney was not valid.

Sheriff Baird’s decision caused substantial uncertainty. The Public Guardian estimated that she had registered some 282,000 powers of attorney in similar form to that considered by Sheriff Baird and that there may be many others in similar form which had not been registered. In B v. H 2014 SLT (Sh Ct) 160, Sheriff Murray disagreed with Sheriff Baird’s interpretation of the Act.

The doubt arising from W’s case has now been resolved by the Inner House in a Special Case between Great Stuart Trustees Ltd and the Public Guardian. The Special Case concerned a power of attorney in similar terms to that which was before Sheriff Baird in W.  The Inner House held that the power of attorney satisfied the requirement of section 15(3)(b) of the 2000 Act. The Court disapproved Sheriff Baird’s reasoning. The Court also clarified the interpretation of section 15(3)(ba) of the 2000 Act, which had also been discussed in the two sheriff court decisions.

The decision illustrates the value of Special Case procedure, which permits the Court to give a ruling on a controversial point of law where the parties are agreed on the facts. In this instance, the hearing in the Inner House took place on 10 December, within two weeks of the lodging of the Special Case. The Court gave an extempore decision on the day of the hearing, and its written Opinion was published within three weeks thereafter.

All counsel involved were from Axiom Advocates. James McNeill QC and the Dean of Faculty represented the two parties to the Special Case. Kenny McBrearty QC was appointed as amicus curiae.