Scottish Sheriff Court Decisions

AW425/11

Note by

John A Baird, Esq., Advocate,

Sheriff of Glasgow and Strathkelvin at Glasgow

In the case of

Application by the Guardian of MM

Note :

1. On 15 February 2012, an application was granted at this court appointing a guardian to an adult with powers relating to personal welfare and property and financial affairs. The adult is 49 and resident in a psychiatric hospital.
2. In September 2012, the guardian lodged a minute asking for additional powers in relation to property and financial affairs. It was averred that prior to the onset of her incapacity, the adult and her husband had been in negotiation with each other, through solicitors, with a view to ending their marriage by divorce, and had instructed the drafting of a Minute of Agreement which regulated the position with regard to the making of a capital payment and a pension sharing agreement, in favour of the adult, to be given effect to upon the grant of divorce.
3. The adult had signed the Minute of Agreement, but her husband had not, and before he could, the adult lost capacity to deal further with these matters. Apparently, her husband then contemplated raising a divorce action by simplified procedure, but of course the adult could no longer consent.
4. Eventually, the guardian's solicitors persuaded the Scottish Legal Aid Board to grant a certificate in order to allow the Guardian, on behalf of the adult, to seek to amend the powers previously granted.
5. Accordingly, on 15 November 2012, and being satisfied on having sight of the original Minute of Agreement signed by the adult, but not signed by her husband, and that it was appropriate to do so, I granted the application to allow the original order to be amended by adding powers enabling the guardian to raise an action of divorce on behalf of the adult on the grounds of two years separation and concluding for payment of a capital sum and for a pension sharing agreement.
6. Specific power is given to a guardian to pursue such proceedings in the name of the adult by virtue of S64(1)(c) of the Adults with Incapacity (Scotland) Act 2000, but this is the first time that I have ever been asked to grant such powers.