Age of Legal Capacity (Scotland) Act 1991
| Year | 1991 |
Age of Legal Capacity(Scotland) Act 1991
1991 CHAPTER 50
An Act to make provision in the law of Scotland as to the legal capacity of persons under the age of 18 years to enter into transactions, as to the setting aside and ratification by the court of transactions entered into by such persons and as to guardians of persons under the age of 16 years; to make provision in the law of Scotland relating to the time and date at which a person shall be taken to attain a particular age; and for connected purposes.
[25th July 1991]
Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Age of legal capacity.
(1) As from the commencement of this Act—
(a) a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction;
(b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction.
(2) Subject to section 8 below, any reference in any enactment to a pupil (other than in the context of education or training) or to a person under legal disability or incapacity by reason of nonage shall, insofar as it relates to any time after the commencement of this Act, be construed as a reference to a person under the age of 16 years.
(3) Nothing in this Act shall—
(a) apply to any transaction entered into before the commencement of this Act;
(b) confer any legal capacity on any person who is under legal disability or incapacity other than by reason of nonage;
(c) affect the delictual or criminal responsibility of any person;
(d) affect any enactment which lays down an age limit expressed in years for any particular purpose;
(e) prevent any person under the age of 16 years from receiving or holding any right, title or interest;
(f) affect any existing rule of law or practice whereby—
(i) any civil proceedings may be brought or defended, or any step in civil proceedings may be taken, in the name of a person under the age of 16 years who has no guardian or whose guardian is unable (whether by reason of conflict of interest or otherwise) or refuses to bring or defend such proceedings or take such step;
(ii) the court may, in any civil proceedings, appoint a curator ad litem to a person under the age of 16 years;
(iv) the court may appoint a curator bonis to any person;
(g) prevent any person under the age of 16 years from—
(i) being appointed as guardian to any child of his, or
(ii) exercising parental rights in relation to any child of his.
(4) Any existing rule of law relating to the legal capacity of minors and pupils which is inconsistent with the provisions of this Act shall cease to have effect.
(5) Any existing rule of law relating to reduction of a transaction on the ground of minority and lesion shall cease to have effect.
2 Exceptions to general rule.
(1) A person under the age of 16 years shall have legal capacity to enter into a transaction—
(a) of a kind commonly entered into by persons of his age and circumstances, and
(b) on terms which are not unreasonable.
(2) A person of or over the age of 12 years shall have testamentary capacity, including legal capacity to exercise by testamentary writing any power of appointment.
(3) A person of or over the age of 12 years shall have legal capacity to consent to the making of an adoption order in relation to him; and accordingly—
(a) for section 12(8) (adoption orders) of the Adoption (Scotland) Act 1978 there shall be substituted the following subsection—
(8) An adoption order shall not be made in relation to a child of or over the age of 12 years unless with the child's consent; except that, where the court is satisfied that the child is incapable of giving his consent to the making of the order, it may dispense with that consent.’; and
(b) for section 18(8) (freeing child for adoption) of that Act there shall be substituted the following subsection—
(8) An order under this section shall not be made in relation to a child of or over the age of 12 years unless with the child's consent; except that where the court is satisfied that the child is incapable of giving his consent to the making of the order, it may dispense with that consent.’
(4) A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment.
(5) Any transaction—
(a) which a person under the age of 16 years purports to enter into after the commencement of this Act, and
(b) in relation to which that person does not have legal capacity by virtue of this section,
shall be void.
3 Setting aside of transactions.
(1) A person under the age of 21 years (‘the applicant’) may make application to the court to set aside a transaction which he entered into while he was of or over the age of 16 years but under the age of 18 years and which is a prejudicial transaction.
(2) In this section ‘prejudicial transaction’ means a transaction which—
(a) an adult, exercising reasonable prudence, would not have entered into in the circumstances of the applicant at the time of entering into the transaction, and
(b) has caused or is likely to cause substantial prejudice to the applicant.
(3) Subsection (1) above shall not apply to—
(a) the exercise of testamentary capacity;
(b) the exercise by testamentary writing of any power of appointment;
(c) the giving of consent to the making of an adoption order;
(d) the bringing or defending of, or the taking of any step in, civil proceedings;
(e) the giving of consent to any surgical, medical or dental procedure or treatment;
(f) a transaction in the course of the applicant's trade, business or profession;
(g) a transaction into which any other party was induced to enter by virtue of any fraudulent misrepresentation by the applicant as to age or other material fact;
(h) a transaction ratified by the applicant after he attained the age of 18 years and in the knowledge that it could be the subject of an application to the court under this section to set it aside; or
(j) a transaction ratified by the court under section 4 below.
(4) Where an application to set aside a transaction can be made or could have been made under this section by the person referred to in subsection (1) above, such application may instead be made by that person's executor, trustee in bankruptcy, trustee acting under a trust deed for creditors or curator bonis at any time prior to the date on which that person attains or would have attained the age of 21 years.
(5) An application under this section to set aside a transaction may be made—
(a) by an action in the Court of Session or the sheriff court, or
(b) by an incidental application in other proceedings in such court,
and the court may make an order setting aside the transaction and such further order, if any, as seems appropriate to the court in order to give effect to the rights of the parties.
4 Ratification by court of proposed transaction.
(1) Where a person of or over the age of 16 years but under the age of 18 years proposes to enter into a transaction which, if completed, could be the subject of an application to the court under section 3 above to set aside, all parties to the proposed transaction may make a joint application to have it ratified by the court.
(2) The court shall not grant an application under this section if it appears to the court that an adult, exercising reasonable prudence and in the circumstances of the person referred to in subsection (1) above, would not enter into the transaction.
(3) An application under this section shall be made by means of a summary application—
(a) to the sheriff of the sheriffdom in which any of the parties to the proposed transaction resides, or
(b) where none of the said parties resides in Scotland, to the sheriff at Edinburgh,
and the decision of the sheriff on such application shall be final.
5 Guardians of persons under 16.
(1) Except insofar as otherwise provided in Schedule 1 to this Act, as from the commencement of this Act any reference in any rule of law, enactment or document to the tutor or tutory of a pupil child shall be construed as a reference to the guardian or, as the case may be, guardianship of a person under the age of 16 years; and accordingly the guardian of such a person shall have in relation to him and his estate the powers and duties which, immediately before such commencement, a tutor had in relation to his pupil.
(2) Subject to section 1(3)(f) above, as from the commencement of this Act no guardian of a person under the age of 16 years shall be appointed as such except under section 3 (orders as to parental rights) or section 4 (power of parent to appoint guardian) of the Law Reform (Parent and Child) (Scotland) Act 1986 .
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