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Guardianship Orders and Powers of Attorney

A recent Court of Session case has demonstrated the importance of Power of Attorney and Guardianship Orders when someone becomes unable to take care of their affairs.

Mary Gallacher died on the 31 March 2011 at the age of 96. She had been suffering from advanced dementia at the time when she signed a deed of disposition to transfer the ownership of her home to other family members. Her niece, Shelia Ritchie, was the executor of the estate and sought a reduction of this disposition on the basis that her aunt was incapax (lacking capacity) when the property was transferred. The executor is the person nominated by the deceased to wind up the estate by making a calculation of the estate, paying debts and paying out to the beneficiaries in accordance with the will and succession law. Ms Ritchie argued that her aunt did not have the mental capacity necessary to grant the disposition due to her dementia.

After hearing evidence from various medical professionals, the Judge, Lord Clarke, ruled that Ms Gallacher did not have the necessary mental capacity to transfer the ownership of her home and granted a deed of reduction. Lord Clarke said, “The medical evidence given by the pursuer’s medical witnesses, I found to be compelling and persuasive both in content and in the manner of its presentation . . . the appropriate mental capacity in July 2007 for granting a disposition of the kind with which the present proceedings are concerned, did not exist.”

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