B AND G PARTNERS, pursuers AGAINST H, defender

The Sheriff, having resumed consideration of the cause, repels the Defender’s second and fourth pleas-in-law and appoints the cause to the procedural roll of 20 August 2014 to determine further procedure; reserves all questions of expenses arising until said diet.

Mr B died in April 2014. The action relating to his Power of Attorney is in abeyance.

After extensive procedure, this case was set down for Proof over several days in late June 2014. However, after the Defender introduced an argument that Mrs B’s Power of Attorney was invalid, the Proof was discharged. In lieu, the issue was debated on 29 July 2014, after which I made avizandum. I am grateful to the Pursuers’ agent and Defender’s Counsel for their carefully presented and thought-provoking submissions.

Counsel for the Defender sought dismissal of the action. He submitted Mrs B’s Power of Attorney did not comply with s.15(3)(b), s.15(3)(ba), s.16(3)(b) and s.16(3)(ba) of the 2000 Act. The document contained no clear statements of intention or determination as referred to in those paragraphs. In their absence, s.18 of the Act made clear that Mrs B’s Power of Attorney was invalid. He relied primarily, but not exclusively, on a recent decision from Glasgow Sheriff Court - W (2014) SLT (Sh Ct) 83 .

a. s.15(3)(b) required every document which fell within its terms to contain a specific statement clearly expressing a granter’s intention that the powers granted should continue in the event of their incapacity