Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 114

XA159/14

 

Lord Menzies

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Special Case

between

GREAT STUART TRUSTEES LIMITED

First Party;

and

SANDRA McDONALD, PUBLIC GUARDIAN

Second Party:

First Party:  McNeill, QC;  Murray Beith & Murray

Second Party:  Dean of Faculty; Brodies, LLP

Amicus curiae McBrearty, QC;

10 December 2014

[1]        This special case for the opinion and judgment of the court has been presented to determine whether a particular power of attorney is valid as a continuing power of attorney for the purposes of section 15 of the Adults with Incapacity (Scotland) Act 2000.  It is recognized, however, that the form of power of attorney in this case is in very common use.  The second party, the public guardian, is responsible under the 2000 Act for maintaining a register of all documents relating to continuing powers of attorney governed by Scots law.  She estimates that in that capacity she has registered of the order of some 282,000 powers of attorney in similar form, and she considers that there may be many others in similar form which have not as yet been registered.  The issues in the special case are accordingly of considerable general importance. 

[2]        The particular power of attorney to which the special case relates was granted by Mr JS (hereinafter referred to as “the granter”) on 8 July 2004, and is in favour of his wife whom failing the first party.  After the power of attorney was granted the granter’s wife became incapax and subsequently died.  Since then the first party has been acting as continuing attorney.  The second party registered the power of attorney as a continuing power of attorney as defined in section 15 of the 2000 Act, originally on 16 July 2004 and latterly on 17 June 2013 in the name of the first party.  The granter is 91 years old and suffers from dementia.  It is a matter of agreement that he is an incapable adult as defined in the 2000 Act.  The first party has hitherto been acting as continuing attorney under the power of attorney.

[3]        Apart from maintaining a register of all documents relating to continuing powers of attorney, the second party is responsible for investigating complaints against continuing attorneys, investigating circumstances made known to her in which the property or financial affairs of an adult appear to be at risk, and providing information and advice to continuing attorneys about the performance of their functions under the 2000 Act.  Section 6(da) of the 2000 Act empowers her to take part as a party in any proceedings before a court where she considers it necessary to do so to safeguard the property or financial affairs of an adult who is incapable for the purposes of the 2000 Act.

[4]        The close relatives of the granter are his nephew, who is now incapax, and the nephew’s wife and two sons.  The nephew’s attorney and his wife and two sons have all intimated that they do not wish to participate in the special case;  letters to that effect had been lodged in process.  The court has appointed an amicus curiae and he has acted as contradictor to the views advanced on behalf of the first and second parties.  He has made submissions to the court which we have found helpful in resolving the issues that arise in the case.

 

Section 15 of the Adults with Incapacity (Scotland) Act 2000
[5]        The statutory provision governing continuing powers of attorney is section 15 of the 2000 Act, as amended.  So far as material, at the time when the document under consideration was granted it was in the following terms:

“Creation of continuing power of attorney

 

(1)        Where an individual grants a power of attorney relating to his property or financial affairs in accordance with the following provisions of this section that power of attorney shall, notwithstanding any rule of law, continue to have effect in the event of the granter’s becoming incapable in relation to decisions about the matter to which the power of attorney relates.

 

(2)        In this Act a power of attorney granted under subsection (1) is referred to as a ‘continuing power of attorney’ and a person on whom such power is conferred is referred to as a ‘continuing attorney’.

 

(3)        A continuing power of attorney shall be valid only if it is expressed in a written document which –

 

(a)        is subscribed by the granter;

 

(b)        incorporates a statement which clearly expresses the granter’s intention that the power be a continuing power;

 

(c)        incorporates a certificate in the prescribed form by a practising solicitor or by a member of another prescribed class that –

 

(i)         he has interviewed the granter immediately before the granter subscribed the document;

 

(ii)        he is satisfied, either because of his own knowledge of the granter or because he has consulted other persons (whom he names in the certificate) who have knowledge of the granter, that at the time the continuing power of attorney is granted the granter understands its nature and extent;

 

(iii)       he has no reason to believe that the granter is acting under undue influence or that any other factor vitiates the granting of the power”.

 

[6]        Amendments were made to section 15 by the Adult Support and Protection (Scotland) Act 2007;  these were not in force when the power of attorney under consideration was granted.  Of these alterations, one is referred to in the stated case;  this is a new subsection (3)(ba), inserted between subsection (3)(b) and subsection (3)(c), which is in the following terms:

“(3)      A continuing power of attorney shall be valid only if it is expressed in a written document which –

 

...

 

(ba)      where the continuing power of attorney is exercisable only if the granter is determined to be incapable in relation to decisions about the matter to which the power relates, states that the granter has considered how such a determination may be made”.

 

This provision is discussed below at paragraphs [30]-[32].

 

The power of attorney
[7]        So far as material, the terms of the power of attorney are as follows:

“I, JS, [address] appoint [the granter’s wife], whom failing whether by reason of death, declinature or incapacity, Great Stuart Trustees Limited, [address] to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000 (which Act and any subsequent amendment thereof is referred to as the ‘Act’)

 

My continuing attorney is referred to as my ‘Attorney’.  My Attorney may manage my whole affairs as he/she thinks fit with full power for me and in my name or his/her own name as my Attorney to do everything regarding my estate which I could do myself and that without limitation by reason of anything contained in this power of attorney or otherwise.

 

Without prejudice to these general powers my Attorney shall have the following powers:- ”.

 

There follows a list of 19 specific powers.  These include giving receipts and discharges for any part of the granter’s estate, receiving transfers and payments to his estate, receiving all forms of income due to the granter, arranging the granter’s tax affairs, purchasing or selling stocks, shares and other investments and taking up rights issues and the like, operating bank accounts, administering and managing any heritable property in which the granter might have an interest, purchasing, selling or leasing any property, heritable or moveable, conducting legal proceedings, carrying on business, and borrowing or lending.  A number of more personal powers are specified;  these include authorizing expenditure for services to the granter or the purchase of any item that is required by him, and making gifts to a range of persons.  The deed then concludes:

“All decisions which may be made and all documents which may be granted by my Attorney shall be equally valid and binding as if made or granted by me.  This continuing power of attorney shall subsist until it is recalled in writing”.

 

[8]        The deed is signed by the granter and witnessed by a solicitor.  The same solicitor granted a signed certificate of even date, which occupies the final page of the document.  The certificate, which states that it is formally incorporated into the document, is intended to satisfy the requirements of section 15(3)(c).  It certifies that the solicitor interviewed the granter on 8 July 2004 “immediately before he subscribed this continuing power of attorney”;  that the solicitor was satisfied that the granter understood its nature and extent;  and that the solicitor had no reason to believe that the granter was acting under undue influence or that any other factor vitiated the granting of “this continuing power of attorney”.

[9]        As noted above, the first party has for some time been acting as if it were a continuing attorney appointed under section 15 of the 2000 Act.  A further development, however, has created some doubt about the legal position.  On 13 May 2014 Sheriff Baird, sitting in Glasgow, issued a decision in an application for guardianship, Application for guardianship in respect of W, 2014 SLT (Sh Ct) 83.  In that case Sheriff Baird expressed the view that a power of attorney did not constitute a continuing power of attorney for the purposes of the 2000 Act as it did not meet the requirements of sections 15(3)(b) and 15(3)(ba) of that Act.  The document therefore had no effect during the period of W’s incapacity.  In a subsequent case, B v H, 2014 SLT (Sh Ct) 160, decided on 7 August 2014 Sheriff Murray, sitting in Forfar, disagreed with the views expressed by Sheriff Baird in W, and upheld the validity of a power of attorney in similar terms to that considered in W.  The reasoning in those decisions is discussed below at paragraphs [25]‑[29].  The documents under consideration in those two cases were similar in form to the power of attorney that is now under consideration and, as we have noted, to many other such powers of attorney. 

[10]      The first party has been advised by senior counsel that the decision in W may give rise to doubt as to the validity of the document under consideration in the present case.  In these circumstances the first party has indicated that it might require to cease acting under the power of attorney and thereafter to apply for guardianship, notwithstanding that that would impose an additional burden on the granter’s estate.  The matter is of some urgency because the granter’s home may require to be sold to fund his care.  Consequently the first party has sought advice from the second party as to the validity of the purported continuing power of attorney.

[11]      The second party has been advised that the analysis of the requirements in the 2000 Act in W is not well founded.  On that basis she has informed the first party that the power of attorney should continue to be treated as valid and that the first party should not cease to act as the granter’s continuing attorney.  In her opinion an application for guardianship would not be the least restrictive intervention in the affairs of the granter, and that would be contrary to the principles set out in section 1 of the 2000 Act;  it would, moreover, deplete the granter’s estate.  The second party nevertheless recognizes that the decision in W has caused significant uncertainty, and considers that it is in the public interest that the conflict of authority which now exists should be authoritatively resolved as soon as possible.  Following discussions between the first and second parties it was decided that a special case would be the easiest and most expeditious means of resolving the problem.

 

Competency of special case
[12]      Nevertheless, a question arises as to the competency of a special case in the present circumstances.  Both the first party and the second party agree that the granter’s power of attorney is a valid continuing power of attorney in terms of section 15 of the 2000 Act.  In general, it can be said that under the special case procedure, now provided for in section 27 of the Court of Session Act 1988, the court will not decide questions that are not in dispute: Mackinnon’s Trs v MacNeill, 1897, 24 R 981, per Lord Adam at 983 and Lord Kinnear at 987‑988.  The reasons for such an approach are set out in that case by Lord Kinnear:

“It is not the purpose of special cases to obtain an opinion of the Court on questions which are not brought before it in such a way as to enable the Court not only to express an opinion but to give a decisive judgment on them.  It is said the trustees ought to be advised as to what course they should take in particular circumstances;  and that is quite true, provided the questions have arisen in such a way as to give rise to a litigation upon which a judgment inter partes may be given.  If that cannot be done – if there is no room for a judgment inter partes – then the opinion of the Court is not binding upon the parties interested, and gives no protection to the trustees.  What protects trustees is a judgment and decision of the Court;  and we are not in the practice of deciding questions which are not disputed, or which counsel for the respective parties have declined to argue”.

 

A broadly similar approach was taken in Mitchell Innes’ Trs v Mitchell Innes, 1912 SC 228, where Lord Kinnear once again emphasized that the court’s decision must be res judicata if it is to be properly binding.  In that case the question was whether the trustees had power to sell certain heritable subjects, and all parties were agreed that a sale would be expedient.  The court held that, although there was no real contention between the parties, the special case was competent because the person with the greatest interest to challenge the decision would be a prospective purchaser, who could be expected to take action immediately.  This discloses that the underlying reason for not deciding cases that are not argued is a practical one rather than an objection of principle: it is to ensure that both sides of the case are or may be presented, in such a way that the court’s opinion has binding effect. Mitchell Innes’ Trs’ is significant because it indicates that the effect on other parties may be canvassed in separate proceedings.

[13]      In Turner’s Trs v Turner, 1943 SC 389, the special case proceeded on the basis that by entering into the case the testator’s widow was not to be deemed to have made her election between her testamentary provisions and her legal rights.  On this basis, certain of the questions asked might be of academic interest only.  The special case was nevertheless held to be competent.  Lord Carmont (at pages 394-395) held that the usual test to settle the competency of a special case “is whether the question raised would form the legitimate subject matter of some other form of action, and the usual possible alternative is an action of declarator”.  Declarator would be competent in the circumstances of that case “not on the footing that anything was being dealt with ab ante, but because the trustees were entitled to proceed on the basis that the testator’s will was a standing operative document”.  Nevertheless the court declined to answer a question that was not argued.   Turner’s Trs can thus be considered authority for two principles: first, if another form of action would be competent, a special case will normally be competent;  and secondly, the underlying principle is that the court will decide questions that are practical, not questions that are hypothetical or academic.  That is the test that is generally applied to other forms of action, such as actions for declarator.  In Turner’s Trs the disposal of the estate was a practical issue for the trustees, regardless of the widow’s election, and that is clearly the basis upon which the special case was held competent.

[14]      In the present case we are satisfied that the special case is competent.  In the first place, the questions raised are certainly not hypothetical or academic;  we were informed that it is likely that the granter’s house will require to be sold in the immediate future, and the power of the attorney to effect such a sale is clearly a matter of great and pressing importance.  Furthermore, although it is not technically relevant to the competency of the special case, we note that the fundamental issues raised in this special case are of great general importance.  In the second place, as practical questions are raised other forms of action, such as an action for declarator, would be competent.  Indeed, an action of declarator would be competent even if the merits of the case were conceded by the compearing defenders.  In such a case the declarator might not bind a third party, which is the point emphasized by Lord Kinnear in the earlier cases, but it does not follow that the declarator would be incompetent.  Moreover, actions of declarator are used on occasion to decide questions of principle that affect general areas of legal or commercial practice.  In such a case the declarator only binds the parties to the action, but it is obvious that others who practise or carry on business in the area in question are likely to follow the court’s decision.  A special case is no different.  In the third place, we have had the considerable benefit of argument from the amicus curiae as contradictor to the views of the first and second parties.  This means that, while our decision cannot bind third parties, it has been reached following proper argument, and is therefore likely to command greater authority than a decision reached without a contradictor.  That distinguishes the present case from, for example, the question that was not answered in Turner’s Trs, where no argument had been presented.

 

The background to section 15
[15]      The relevant provisions of the Adults with Incapacity (Scotland) Act 2000 are based on the Scottish Law Commission’s Report on Incapable Adults (Scot Law Com No 151), published in July 1995;  so far as section 15 is concerned it is Part 3 of the Report, dealing with Continuing and Welfare Powers of Attorney, that is relevant.  The law as it existed prior to the 2000 Act is set out at paragraphs 3.1-3.3 and 3.6.  The term “power of attorney” strictly speaking refers to a power of legal representation conferred by one person on another by means of a contract of mandate or agency.  Contracts of mandate or agency appointing others to manage a person’s financial affairs and property have been available in Scotland for many centuries, and the common law is well developed.  So far as adults with incapacity were concerned, the Commission noted that elderly or ill people anticipating likely future incapacity might wish to hand over all or part of their financial affairs to an attorney even though at the time they were mentally capable of managing their affairs themselves.  Should they later become incapable they would expect the attorney to carry on acting. 

[16]      Powers of attorney were also used to a lesser extent by those who were physically and mentally well but wished to provide against an unforeseen future loss of capacity.  The main advantage of contractually conferred powers of attorney is that they are relatively cheap and flexible compared with court-appointed guardians.  The granter can decide whom to appoint as attorney and what powers to confer.  Furthermore, the granting of a power of attorney does not require that the granter should acknowledge possible future incapacity, nor that incapacity should be certified by a medical practitioner and published in legal proceedings.  The main disadvantage was that an attorney, unlike a court-appointed guardian, was not supervised and monitored by a public official.  The functions of the second party in relation to continuing attorneys are clearly intended to meet the latter problem.

[17]      At common law the appointment of an attorney lapsed in the event of the subsequent mental incapacity of the granter.  This was altered by section 71(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which provided that any rule of law by which a power of attorney ceases to have effect in the event of the mental incapacity of the granter should not apply to such a power granted after the section came into force.  Thus the regime in force from 1991 onwards was that a power of attorney would not lapse on the incapacity of the granter unless the granter opted out.  The Commission considered that it was preferable to have a system of opting in rather than opting out;

“the general rule should be the powers of attorney do not continue after the granter’s incapacity, but it should be competent for granters by express provision to grant continuing authority after incapacity on their attorneys” (paragraph 3.6). 

 

The Commission thought that an opting-in system enabled appropriate safeguards to be incorporated for contracts that expressly provided for continuing powers of attorney without extending them to powers of attorney in general.  It would also ensure that granters had to consider carefully the desirability of granting a continuing power, and prevented them from inadvertently conferring a continuing power through ignorance or forgetfulness of the need to opt out.

[18]      Against that background, the Commission (at paragraph 3.8) considered the detailed provisions that should apply to continuing powers of attorney, that is to say, powers of attorney that continued to have effect after the incapacity of the granter.  They rejected the use of a prescribed style, as that could create difficulties if there were any deviation, or in unusual cases.  “The only requirement should be that the document clearly shows that the granter intended the attorney to have continuing power” (ibid).  The relative recommendation, recommendation 17, follows that view and rejects the use of a prescribed style.  The foregoing views of the Commission are reflected in provisions in the Bill appended to their Report that are in the same terms as section 15(1) and (3)(b) of the 2000 Act.

[19]      The Commission also considered how to ensure that a granter understands the document when signing it (paragraphs 3.14-3.18 and recommendation 19).  On this matter, they indicated that granters should be fully aware of what they are doing in signing a document confirming a continuing power of attorney, as they are handing over the future management of their affairs to individuals whom they will be unable to supervise and if necessary dismiss.  Thus proper measures of protection were required when the document confirming the power of attorney was signed.  The relevant recommendation is that, in order to be formally valid, a document conferring a continuing power of attorney should contain two certificates by a solicitor (or possibly other specified classes of person): first, a certificate that, after interviewing the granter and obtaining any necessary reports, the solicitor is satisfied that the granter understood the nature and effect of the document;  and secondly, a certificate that he or she has no reason to believe that the document was being signed as a result of anything which would vitiate the granting of the power.  That recommendation is reflected in a provision in the Commission’s Bill that corresponds to section 15(3)(c) of the 2000 Act.

 

Construction of section 15(3)(b)
[20]      As with any legislation, section 15 must be construed purposively, in such a way as to give effect to the objectives and policy that underlie the section.  Those objectives and policy are to be found in Part 3 of the Report of the Scottish Law Commission that led to the legislation.  In relation to section 15(3)(b) the objectives and policy are stated in paragraphs 3.6 and 3.8 and recommendation 17 of that Report.  In the first place, section 15 was intended to alter the existing scheme for continuing powers of attorney by substituting a system of opting in for the previous system of opting out.  That is why subsection (3)(b) requires a statement that “clearly expresses the granter’s intention that the power be a continuing power”.  The policy is clearly that the creation of a continuing power should not be a matter of implication but should be done expressly.  In the second place, it is apparent from paragraph 3.8 of the Report that the Commission rejected the use of a prescribed style precisely because that could create problems if any deviation were encountered from that style.  That in itself indicates that no particular significance is to be attached to the precise wording used, as long as the intention is sufficiently clear.  In the Commission’s words, “The only requirement should be that the document clearly shows that the granter intended the attorney to have continuing power”.  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.

[21]      In construing a statutory provision it is also important to have regard to the context provided by the statute.  In the case of section 15(3)(b), regard must be had to the whole of section 15, including the other conditions found in section 15(3).  In this connection section 15(3)(c) is relevant.  The latter provision is intended, as the Scottish Law Commission indicates at paragraphs 3.14-3.18 and recommendation 19 of their Report, to ensure that the granter of a continuing power of attorney is fully aware of what he or she is doing, including the implications of granting a continuing power of attorney.  Consequently section 15(3)(b) is not designed to ensure that the granter understands what he or she is doing;  that is dealt with elsewhere.  Section 15(3)(b) is concerned solely with the expression of the granter’s intention, and should be construed accordingly. 

 

Application of section 15(3)(b) to the present document
[22]      On the foregoing basis we are of opinion that the power of attorney granted in favour of the first party is unquestionably a valid continuing power of attorney for the purposes of section 15.  The document must obviously be construed objectively.  Its opening sentence, read short, provides that “I [the granter] appoint [my wife] whom failing … Great Stuart Trustees Limited … to be my continuing attorney in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000”.  That sentence, which is clearly the fundamental provision of the document, uses the expression “continuing attorney”, which is defined in subsection (2) of section 15 as a person on whom a continuing power of attorney is conferred.  That by itself points strongly to the conclusion that the document was intended to confer a continuing power of attorney.  Then the sentence makes express reference to section 15.  It is difficult to imagine what function that reference would have served if there had been no intention to create a continuing power of attorney within the meaning of that section.  These two factors, the use of the expression “continuing attorney” and the express reference to section 15, are in our opinion sufficient by themselves to satisfy the requirements of subsection (3)(b): the statement made in the opening sentence “clearly expresses the granter’s intention that the power be a continuing power”.  We cannot give it any other construction.

[23]      The document does not stop after the first sentence.  It continues with a general power to manage the granter’s affairs, including full power to do everything that the granter could do himself.  Nineteen specific powers are then set out;  these are very wide in their scope.  Nothing in those powers detracts from the view that a continuing power of attorney is intended, which will subsist after the granter’s incapacity;  the very width of the powers conferred is fully consistent with such an intention.  The document concludes with a statement that “This continuing power of attorney shall subsist until it is recalled in writing”.  That repeats the point made in the opening sentence, that a continuing power of attorney is intended.  The expression “continuing power of attorney” is a term of art, deriving its existence from section 15 of the 2000 Act;  so far as we have been able to discover it was not used previously, at least in a formal basis, and it is not found in section 71 of the Law Reform (Miscellaneous Proceedings) (Scotland) Act 1990.  Thus the use of that term of itself points clearly to section 15 of the 2000 Act.  In these circumstances the present document can only be intended to express an intention that the power be a continuing power of attorney. 

[24]      Finally, we should observe that the present power of attorney includes a certificate, signed by the solicitor who witnessed the document, to the effect that she interviewed the granter, was satisfied that at the time the granter understood its nature and extent, and had no reason to believe that the granter was acting under undue influence or that his consent was otherwise vitiated.  That certificate satisfies the requirements of section 15(3)(c).  It is against the background of that certificate that the operative part of the document must be construed, and in our opinion the granter’s intention emerges clearly from the terms of the document, in particular its opening and closing clauses.

 

The decisions in the Sheriff Court
[25]      We have already referred to the Sheriff Court cases of Application for guardianship in respect of W and B v H, decided in May and August of this year.  These cases reach contrary results.  We prefer the reasoning of Sheriff Murray in the latter case, B and G v H, and we consider that the decision in W should not be followed.

[26]      In W the cousin and niece of an incapacitated adult applied to the court for a welfare and financial guardianship order and revocation of a purported continuing power of attorney.  The latter document had been granted in favour of a bank.  The applicants had been operating for the adult’s benefit for approximately two years and had organized her care during that period.  The document in favour of the bank was drawn to the attention of the applicants by the public guardian when their application was intimated to her office.  The appointment of the bank, read short, stated:

“I appoint Clydesdale Bank PLC to be my continuing Attorney (‘my Attorney’) in terms of section 15 of the Adults with Incapacity (Scotland) Act 2000 and as it may be amended” (see paragraph [17]).

 

The document was thus very similar to that under consideration in the present case.  The Sheriff held that the document did not create a valid continuing power of attorney in terms of section 15.

[27]      The Sheriff’s reasoning in support of this conclusion began by emphasizing the importance of section 15(3)(b) in the scheme of the section.  In doing so, however, he appears to have adopted a very literal, non-purposive interpretation of that paragraph.  He stated that the document under consideration contained no specific statement “which clearly expresses the granter’s intention that the power be a continuing power” (paragraph [24]).  He considered that that intention must appear in “a specific statement”;  otherwise there would be no need for section 15(3)(b).  He then stated that he had seen many powers of attorney created since the passing of the 2000 Act and referred to the wording found in other cases which he thought did satisfy the requirements of section 15(3)(b).  On that basis he felt able to state with certainty that it was routine to find a specific clause in the document which contained words such as:

“The granter hereby declares that she intends that this document and the powers contained therein shall subsist and continue to have effect, notwithstanding that I shall have lost capacity in relation to the matters contained herein”.

 

Another more elaborate form of wording is given (paragraph [25]).  On the foregoing basis, the Sheriff concluded (at paragraph [26]) that the clause under consideration was insufficient to create a valid continuing power of attorney, since it did not comply with the requirements of section 15(3)(b).  The result was that section 18 of the 2000 Act applied, and the power had no effect during any period when the granter was incapable.

[28]      In our opinion this involves too strict a construction of section 15(3)(b).  The objective of that paragraph was to replace the previous system of opting out of a continuing power with a new system of opting in.  That is why a statement is required that clearly expresses the granter’s intention that the power be a continuing power.  If the intention is clear, however, we do not think that it is necessary to have regard to niceties of wording: see paragraph [20] above.  Furthermore, we have indicated that conditions attached to a statutory provision should not generally be construed in a manner that is restrictive or burdensome or over-literal, provided that the substance is clear: see paragraph [21] above.  The decision in W, however, appears to focus on details of the wording used in subsection (3)(b) and to adopt a very literal construction of that provision, in that it requires an express declaration that more or less follows the wording of paragraph (b).  In our opinion this is unnecessary;  as we have indicated, provided that it is clear as a matter of substance that the granter of a document intends to create a continuing power of attorney falling within section 15, that is sufficient to satisfy the requirements of subsection (3)(b).

[29]      In B v H Sheriff Murray considered an application to revoke the appointment of one of three persons who had purportedly been appointed continuing attorneys.  The defender sought dismissal of the action on the basis that the power of attorney did not comply with section 15(3)(b);  reliance was placed on W.  In a carefully reasoned decision the Sheriff held that the power of attorney was a valid continuing power of attorney within the meaning of section 15.  He referred to Part 3 of the Scottish Law Commission’s Report, and in particular to the rejection of prescribed wording in favour of a recommendation (recommendation 17(2)) that any words showing a clear intention that continuing authority should be conferred would suffice (paragraph [29]).  “Intention” connoted the existence of an aim or plan, something that was to be achieved.  In addition, the Sheriff drew attention to subsections (3)(c) and (4) of section 15, which provide for statutory checks before, at the time of and after subscription of a power of attorney, by an approved person or solicitor.  In this way the Sheriff thought that the legislation affords protection to the granter, to those who exercise a power of attorney and to those who act on the basis of such a power.  The wording of the document under consideration in that case was, the Sheriff held, sufficient to satisfy subsection (3)(b).  Financial attorneys were fully designed, the relevant section of the 2000 Act was  specified, and full financial powers were also specified.  The deed might have been better drafted, but any errors were stylistic and not substantial (paragraph [34]).  The granter’s intention to create a continuing power was, in context, clearly expressed.  In our opinion that is the correct approach, and we agree with the Sheriff’s reasoning.

 

Section 15(3)(ba)
[30]      As we have previously noted, paragraph (ba) of section 15(3) was introduced by the Adult Support and Protection (Scotland) Act 2007, and came into force on 5 October 2007.  The present power of attorney was granted on 8 July 2004, and is therefore not subject to paragraph (ba).  We nevertheless heard submissions on the proper application of the paragraph, and in view of the importance of the issue we think it appropriate to say something about the matter, albeit on an obiter basis.  The importance of this matter arises from the fact that differing views on the application of paragraph (ba) were expressed by the Sheriffs in W and B v H.  On the basis of the submissions made to us we are of opinion that the interpretation adopted by the Sheriff in W is incorrect, at least if it is applied generally, and that in B v H is correct. 

[31]      The fundamental purpose of section 15(3)(ba) is to deal with what are frequently referred to as “springing” continuing powers of attorney.  A power of attorney may be exercisable immediately;  alternatively, it may be expressed in such a way that is only exercisable at a future date, when the granter becomes incapable of dealing with his or her own affairs.  In the former case it will often be expected that the granter will continue to deal with his or her affairs until incapacity supervenes, although it is competent for the attorney to act during that period.  In the latter case, by contrast, the attorney cannot act until incapacity supervenes.  In that event it is obviously important that it should be made clear when incapacity occurs, because that is when the attorney’s powers become exercisable.  Section 15(3)(ba) is designed to deal with such “springing” powers of attorney.  That is clear from the wording used: the paragraph applies where the continuing power of attorney “is exercisable only if the granter is determined to be incapable” in relation to decisions about the matter to which the power relates.  The wording is perhaps slightly convoluted, but that is to deal with the possibility that the power of attorney might relate only to restricted classes of activities.  The essential point, which appears from the words just quoted, is that the power should be exercisable only on a future determination of incapacity.

[32]      In the present case the power of attorney is immediately exercisable.  That is apparent from the wording of the opening sentence of the document creating the power, which involves a straightforward appointment in the present tense.  The only reference to the future is the possibility that the granter’s wife might cease to act through death, declinature or incapacity, but that merely substitutes one attorney for another;  the power is still exercisable from the outset.  Consequently section 15(3)(ba) has no application to the present case.  In W, however, the Sheriff held (at paragraphs [29]-[33]) that a power of attorney in terms very similar to the present did not satisfy the requirements of subsection (3)(ba).  He held that the document under consideration, the essentials of which are set out at paragraph [26] above, was silent on that matter;  indeed it did not even suggest that the issue had been considered.  In our opinion, on the wording of the power of attorney in that case subsection (3)(ba) would never be operative, because the power of attorney is exercisable immediately.  This is subject to one possible qualification, which was pointed out to us by the amicus curiae: in that case the bank which had been purportedly appointed attorney accepted in argument that it was never intended that it should act as the granter’s attorney while she retained capacity: paragraph [32].  On that basis the Sheriff might have thought that the power was in reality, if not on its wording, a “springing” power of attorney.  Nevertheless, the wording appears to us to be to the contrary.  In B v H, by contrast, the Sheriff held that section 15(3)(ba) did not apply, as the financial powers conferred by the granter were not “only intended to spring into effect on incapacity”:  paragraph [27].

 

Conclusion
[33]      The first question in the stated case is whether the power of attorney is valid having regard to the provisions of section 15(3)(b) of the 2000 Act.  For the reasons already given, we answer that question in the affirmative.  The second question is whether the power of attorney is valid having regard to the provisions of section 15(3)(ba) of the same Act.  For the reasons that we have given, we consider that that question must be answered in the affirmative on the basis that the provision in question postdates the present document.  We add, albeit obiter, that even if the document had been granted after section 15(3)(ba) took effect, it would still have been valid, as it creates a continuing power of attorney that is immediately exercisable.