Court explains decision on valid continuing power of attorney
Reasons to explain the decision to uphold the validity of a commonly used form of wording intended to create a continuing power of attorney have been given in an opinion now issued by the Inner House.
Earlier this month, in a special case presented by Great Stuart Trustees Ltd as attorney and the Public Guardian, Lord Menzies, Lord Bracadale and Lord Drummond Young agreed that a form of wording previously held invalid in a different case by Sheriff John Baird at Glasgow was in fact sufficient to comply with section 15 of the Adults with Incapacity (Scotland) Act 2000, as amended.
Sheriff Baird had held that a document beginning "I appoint [names] to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000" did not satisfy the condition in section 15 that it "clearly expresses the granter’s intention that the power be a continuing power", as there had to be a specific statement setting out that intention. However the court, quoting the report of the Scottish Law Commission that preceded the 2000 Act, said: “The only requirement should be that the document clearly shows that the granter intended the attorney to have continuing power”.
Lord Drummond Young, giving the opinion of the court, continued: "Thus, while the intention to create a continuing power of attorney must be expressly declared, all that is required is wording that in substance demonstrates that intention with sufficient clarity." The provision in question, section 15(3)(b), was not designed in addition to ensure that the granter understood what he or she was doing, because that was dealt with in section 15(3)(c). The Commission had deliberately rejected requiring any particular form of words, so long as the intention was clear.
The quoted phrase from the document, which adopted the statutory terminology, was unquestionably valid, construed objectively, especially as it also concluded: "This continuing power of attorney shall subsist until it is recalled in writing”, and contained the necessary certificate as to capacity of the granter in terms of section 15(3)(c).
The judges added, though the point did not arise as the document predated the relevant provision, that as it was plain from its terms that the power was immediately exercisable, it was not invalid by not stating how it would be determined that the granter had become incapable, a condition for the validity of a power that only came into effect in such a case as laid down by section 15(3)(ba).
They also decided that the special case was competent even though the two presenting parties were not in disagreement, since it raised an important practical question that could have been the subject of an action of declarator. The court had the benefit of opposing argument from counsel appointed as amicus curiae.