Jurisdiction in Scotland allowed daughter to be appointed as Financial and welfare Guardian

Digby Brown was instructed by the daughter of an Incapable Adult, Mr C. Mr C. is in his late 70's and sustained a severe brain injury as a result of a road traffic accident on 18 July 2010. The accident was in Scotland, approximately 1 mile from the border with England. Jurisdiction for the personal injury action therefore lies in Scotland. Prior to the accident, Mr C. lived with daughter and her husband in Canonbie. However, following the accident, Mr C. was admitted to hospital in England before being discharged in February 2011 to Harker Grange Nursing Home, near Carlisle.

We were instructed to proceed with a Summary Application to appoint his daughter as Financial and Welfare Guardian of her father. We lodged a Summary Application at Dumfries Sheriff Court on the basis that jurisdiction was established in Scotland as the habitual residence of Mr C. was in Dumfries. A hearing was fixed at Dumfries Sheriff Court. We made oral submissions at the hearing that jurisdiction was in Scotland as Mr C. was habitually resident in Scotland and that there was property situated in Scotland in terms of paragraph 1(b) of Schedule 3 as jurisdiction for the personal injury action was in Scotland. The sheriff wished time to consider the matter further and we made written submissions on jurisdiction. Having considered the written submissions, the Sheriff was prepared to grant the application on the basis that jurisdiction is established in terms of paragraph 1(b) of Schedule 3 that as the jurisdiction of the personal injury is in Scotland, moveable property is in Scotland.