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IN THE MATTER OF THE POWERS OF ATTORNEY ACT 1996 AND IN THE MATTER OF AN APPLICATION
FOR
REGISTRATION OF AN ENDURING POWER OF ATTORNEY OF R.
W.
DATED
20th JULY, 2012
BETWEEN
M. L.
APPLICANT
AND
D.W. (OTHERWISE
D.B.)

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RESPONDENT
JUDGMENT of Mr. Justice Kelly, President of the High
Court
delivered
on the 8th
day
of April 2016
Introduction
1. Mr.
D.W.,
otherwise
D.B.
(the Objector), objects to the registration of an Enduring Power of Attorney made on 20th July 2012 by his mother Mrs. R.
W.
(the
Donor).
The Objector is a son of the
Donor.
The applicant, M. L.(the Attorney), is the
Donor’s
daughter
who
was
appointed Attorney under the Enduring Power of Attorney. The objection is made pursuant to the provisions of s. 10 of the Powers of Attorney Act 1996 (the Act).
Facts
2. The
Donor
is in her 85th year. She has three
children.
The Attorney is her only
daughter.
The Objector is her youngest
child.
Her other son, T.
W.
gave evidence before me and
fully
supports his sister, the Attorney, in all that she has
done,
both in looking after the
Donor
over the years and in her endeavour to have the Enduring Power of Attorney registered. T.
W.
and the Objector are not on good terms and have not spoken to each other
for
the last eight years.
3. The
Donor
owns a house in
Dublin
which
she purchased
from
the local authority many years ago. She resided there until she
was
no longer able to
do
so
for
health reasons.
4. In 2006, the
Donor
had a stroke. She
was
hospitalised
for
a number of
weeks.
Upon
discharge
from
hospital, she
went
to live
for
a time
with
the Attorney and her
family,
but after some time returned to live in her own home in
Dublin.
From
2006 onwards, the Attorney
was
heavily involved in looking after her mother. She regularly visited the
Donor
in her home,
did
her shopping, brought her to hospital and medical
consultations
and looked after her affairs generally. I am satisfied that there
was
a
close
and
warm
relationship between the
Donor
and the Attorney and that
from
2006 onwards the Attorney looked after her mother very
well.
I am
fortified
in that view by the evidence given by T.
W.
who
spoke eloquently of the role played by the Attorney. Indeed, the Objector
did
not
dissent
in any
way
from
that view and accepted that his sister had looked after his mother very
well.
5. Up to the time of her stroke in 2006, the
Donor
did
not have a bank account. She
carried
substantial sums of money on her person and had been the victim of a robbery on one occasion.
Following
her stroke, it
was
agreed between her and the Attorney that a joint account
would
be opened in their respective names to
which
the
Donor
could
lodge money and the Attorney
could
look after her
financial
affairs.
6. The
Donor
recovered reasonably
well
from
her stroke and
was
able to resume to a great extent her normal living pattern. One
feature
of her life
was
that she
would
go into
Dublin
city
centre
on a
Friday,
collect
her pension at the General Post Office, meet her granddaughter
for
lunch and then go and visit her sister in a
Dublin
suburb. In 2012, an incident occurred
when
the
Donor
failed
to turn up to her sister’s house at the usual time in accordance
with
her normal practice. Her sister became somewhat alarmed at this. The Attorney
was
not so
concerned
because she knew her mother
well
and
when
she
was
told that her mother
was
delayed
because of engaging in a lengthy
conversation
with
somebody
whom
she met in the
city
centre
she
was
not altogether surprised.
7. The Objector took a rather more serious view of this incident and insisted that the
Donor
be examined by a
consultant
physician in geriatric medicine. The
Donor
was
seen by
Dr.
M.
for
assessment by him of
what
he
described
as an “emerging
dementia
process”.
Dr.
M. advised that
consideration
should be given to the execution of an enduring power of attorney sooner rather than later.
8. I am satisfied that
Dr.
M.
would
not have given that advice if he had any serious
doubts
about the mental
capacity
of the
Donor
to execute such a
document
at that time.
9. In any event,
Dr.
M’s advice
was
taken and on 20th July 2012, the
Donor
created
the Enduring Power of Attorney. She also executed a General Power of Attorney pursuant to s. 16 of the Act on the same
day.
10. The Enduring Power of Attorney
created
on 20th July 2012
was,
I am satisfied, executed in an entirely regular
way.
It
was
properly executed. It
contained
a
duly
completed
statement by the solicitor to the effect that, having interviewed the
Donor,
she
was
satisfied that the
Donor
understood the effect of
creating
the Enduring Power and had no reason to believe that the
document
was
being executed by the
Donor
as a result of
fraud
or undue pressure. I am also satisfied that the General Power of Attorney
was
properly executed by the
Donor
who
understood
what
she
was
doing.
11. In addition, the Enduring Power of Attorney
contained
a statement
from
a registered medical practitioner stating her opinion that at the time the
document
was
executed by the
Donor,
she, (the
Donor),
had the mental
capacity,
with
the assistance of such explanations as may have been given to her, to understand the effect of
creating
the power.
12. I
find
that the
Donor
fully
understood
what
she
was
doing
at the time she executed the Enduring Power of Attorney and that she had the mental
capacity
to
do
so. I make these
findings
because at one stage, the Objector alleged that the
Donor
did
not understand
what
it
was
that she had signed and that she
was
coerced
into signing the
document
by the Attorney. This line of objection
was
not ultimately pursued, and in
fact
was
specifically
withdrawn
at the hearing. In such
circumstances,
it
was
indeed unfortunate that the Objector,
during
the
course
of his testimony, returned to it and alleged that the General Practitioner’s
certificate
was
one
which
was
given to “accommodate the
family”.
In
fairness
to him, he subsequently
withdrew
that allegation, but it is one
which
should not have been made and there
was
no evidence to support it.
13. A good
deal
of tension existed in the relationship between the Objector and the Attorney since the events of 2012. In 2014, a bona
fide
attempt
was
made to effect a reconciliation
when
the Objector invited the Attorney to
dinner.
That attempt
was
reasonably successful, but unfortunately, subsequent events have reanimated the rift in the relationship
which
is in part, at least, responsible
for
the unhappy situation
which
exists today.
14. In
February
2015, the
Donor
was
admitted to hospital suffering
from
pancreatitis. Having recovered
from
that
condition,
it became necessary
for
her to move into nursing home
care,
and since June 2015 she has been permanently resident at a nursing home in
County
Louth. In
common
with
many elderly people, I am satisfied that the
Donor
had no
desire
to ever move into a nursing home, but it became necessary to
do
so since she
was
no longer in a position to look after herself in her home in
Dublin,
particularly in
circumstances
where
none of her
family
now live in
Dublin.
Objection
15. In September 2015, the Objector instructed his solicitor to
write
to the Attorney
complaining
of the
way
in
which
she
was
handling the
Donor’s
affairs. The letter read as
follows:
“Dear Ms. L.,
I have been asked to
write
to you
for
and on behalf of your brother,
D.B.,
with
reference to Mrs. R.
W.
I understand
from
my
client
that Mrs.
W.
is at present in a nursing home in
County
Louth, and that you appointed yourself as Attorney on
foot
of an Enduring Power of Attorney some time in the summer of 2013.
I am aware that my
client
is one of the noticed (sic) parties as is his brother, T.
W.
My
client
has serious issues
concerning
your handling of his mother’s affairs and I am advised that the
family
home has been put on the Internet through
Flynn
& Associates Auctioneers, Raheny,
Dublin
5,
for
the purpose of sale.
I am instructed by my
client
that no notice of intention to apply
for
registration of the Enduring Power of Attorney has been served on my
client
(as one of the noticed (sic) parties)
which
is a prerequisite to having the Enduring Power of Attorney sealed and enrolled in the High
Court.
In any event, the purpose of this letter is to
formally
put you on notice that my
client
will
be objecting to any application to implement the Enduring Power of Attorney, and more importantly to
dispose
of Mrs.
W’s
family
home.
The purpose of this letter is to
formally
put you on notice that I require
confirmation
from
you
within
7
days
that you
will
withdraw
the property
from
sale and undertake to have the notice removed
from
any
website/Internet
and you
will
so instruct
Flynn
& Associates Auctioneers in this respect.
It is unclear as to
which
solicitor has been retained
with
reference to the Enduring Power of Attorney.
I understand
from
my
client
that Ms. G, solicitor,
was
the
family
solicitor, but at present you may be
dealing
with
a Mr.
F.
S. Quite naturally, a
copy
of this letter has been
furnished
to them.
You
can
take this letter as my
client’s
formal
objection to having the Power of Attorney sealed and enrolled in the High
Court.
My
client
instructs me that in a
conversation
with
your good self he indicated that he is quite happy to take his mother and look after her in his
family
home at
County
K. and he is also aware that it is your mother’s
wishes
that the
family
home
would
not be
disposed
of.
In those
circumstances,
I await hearing
from
you.”
16. It
was
indeed true that the Attorney had taken steps to sell the
Donor’s
family
home. She
did
so in
circumstances
where
the house
was
vacant,
where
outgoings such as insurance, property tax, electricity and gas bills had to be met and
where
the house had been broken into. In addition, she
was
of the view that the proceeds of sale
were
required
for
the purpose of
funding
the
Donor’s
care
because there
was
a shortfall of approximately €1,000 per month in relation to that. She says that she put the house up
for
sale
with
the knowledge and agreement of the
Donor
to the extent that she
was
in a position to understand and agree to it.
Whilst
the
Donor
was
sad at the thought of selling her home, she, it is said, understood the reasons and
was
agreeable to it. The Attorney believes that she kept
family
members, including the Objector, informed as best she
could.
17. The reason
why
the solicitors named in the Objector’s letter of September 2015
were
chosen
rather than the normal
family
solicitors
was
to save
costs.
18. In any event,
following
the objection the house
was
withdrawn
from
the market.
19. Meanwhile, the
Donor
was
resident in the nursing home. Because of her hospitalisation early in 2015, she
was
unable to attend her annual appointment
with
Dr.
M. Ultimately, she attended
with
him in September 2015.
20.
Following
that appointment,
Dr.
M
wrote
to the
Donor’s
solicitor in the
following
terms:
21.
Within
days
of receipt of the medical report
from
Dr.
M, steps
were
taken to register the Enduring Power of Attorney. No
criticism
was
or
could
be made of any tardiness on the part of the Attorney in so
doing.
22. Under
cover
of a letter of 4th November 2015, the Objector set out his objections to the registration of the Enduring Power of Attorney. That notice included objections on the basis of alleged invalidity of the Enduring Power of Attorney and unsuitability of the Attorney
for
that office. Subsequently, on 27th November 2015, a
Form
No. 4 Notice of Objection
was
received
which
confined
itself to an allegation of unsuitability on the part of the Attorney. Later still, on 25th January 2016, a
further
Form
No. 4 Notice of Objection
was
served. On this occasion, three grounds
were
advanced. The
first
was,
yet again, an allegation of unsuitability of the Attorney; second, invalidity of the power, and third, that the power
created
by the Instrument
was
“no longer a valid and subsisting power”.
23. These
changes
in mind on the part of the Objector, as
witnessed
in these various Notices of Objection, manifested itself in the
witness
box in the
way
in
which
I have
described
earlier in this judgment. However, at the hearing, all objections save one
were
abandoned. The sole objection is as to the suitability of the Attorney. Her alleged unsuitability arises largely
from
the
decision
made by her to effect a sale of the
Donor’s
house.
The Sale of the House
24. As I have already indicated, the
decision
on the part of the Attorney to sell the house
was
based upon a number of
factors.
They included the shortfall of approximately €1,000 per month in the nursing home
charges
for
her mother, maintenance and outgoings on the house and the
fact
that it had been broken into.
25.
For
his part, the Objector believes that the house should be maintained and let.
Failure
to adopt this
course
has a particular
consequence
for
the operation of the
Fair
Deal
Scheme
which
I
will
turn to in a moment. The sale of the house
will
also mean that the single non-
cash
asset of the
Donor,
which
would
be available
for
distribution
between her
children
on
death,
will
no longer be so.
For
her part, the Attorney made it
clear
that that is a matter of no
consequence
for
her
whatever
may be the position
concerning
the Objector.
26. The
Donor
is the beneficiary of the provisions of the Nursing Home Support Scheme Act 2009,
commonly
called
the
Fair
Deal
Scheme. On the evidence before me, there is a shortfall between the
cost
of the
Donor’s
care
and the amount recoverable under that scheme of approximately €1,000 per month. The
care
costs
of the
Donor
are about €4,000 per month. The scheme
covers
approximately €2,000 of that
cost
and
further
pension entitlements account
for
another €1,000. The shortfall of €1,000 per month has to be met by the
Donor
and
funds
are not
currently
available to meet her payment obligations. These payment obligations
can
be met either by selling the house or by letting it. The Attorney has
decided
that the better
course
is to sell
for
the reasons
which
I have identified
whereas
the Objector takes the opposite view.
27. A
decision
to sell has, however,
further
fiscal
implications
for
the
Donor’s
assets
which
arise in the
following
circumstances.
28. By letter of 12th June 2015
from
the Health Service Executive, the application
for
support under the Nursing Home Support Scheme Act 2009
was
assessed. The
following
was
the assessment made:
29. The
Donor’s
dwelling
house is her only non-
cash
asset. Pursuant to the scheme, the
first
€36,000 of a non-
cash
asset is not included
when
determining
the level of
contribution.
The 7.5% valuation of the
Donor’s
non-
cash
asset is included
for
the
first
three years of
care
and has a total
cap
of 22.5%. The
Donor
has been in permanent residence in a nursing home since June 2015.
30. The sale of the
Donor’s
house
will
alter the
classification
from
non-
cash
asset to
cash
asset under the scheme. That
will
remove her entitlement to the 3-year
cap.
Thus, the non-
cash
asset becomes a
cash
asset and therefore it
fails
to attract the 3-year
cap
on it. Thus, if the
Donor
survives
for
a period beyond June 2018, she
will
continue
to be assessed in respect of her
former
house
which
will
be a
cash
asset, something
which
would
not occur after that
date
were
the house to remain as a non-
cash
asset in her ownership.
31.
Can
it be said that a
decision
made by an Attorney to sell the
Donor’s
dwelling
house in such
circumstances
is one
which
renders her a person unsuitable to act as Attorney?
Section 10
32. Section 10(3) of the Act identifies
five
grounds
which,
if established, amount to a valid objection to the registration of an Enduring Power of Attorney.
Four
of them no longer have any relevance to this
case.
The only one that is relevant is that set out at s. 10(3)(
d),
namely, that having regard to all the
circumstances,
the Attorney is unsuitable to be the
Donor’s
attorney.
33. Such a ground had to be
considered
by Morris P. In Re Hamilton [1999] 3 I.R. 310. In that
case,
two attorneys
were
nominated by the
donor,
namely, her solicitor and her
daughter.
The
donor
was
deemed
incapable of managing her own affairs and the applicants applied
for
registration of the Enduring Power of Attorney. The
donor’s
son objected to the registration on two grounds. Only the second such ground is relevant
from
the point of view of this
case.
34. In Hamilton, it
was
argued that the applicant had mismanaged the
donor’s
affairs and had
dealt
with
her assets in an unbusinesslike manner thereby
failing
to realise their true potential. Morris P.
dealt
with
that objection in the
following
way:
“In my view, lack of business skill is not a valid objection to the registration under section 10. It is perfectly normal
for
a
donor
to
choose
a member of his or her
family
or somebody sympathetic to him or her to act as an attorney. It
would,
in my view, be an improper exercise of the
discretion
vested in the
court
to refuse to register an instrument simply because the
chosen
attorney
did
not possess management and business skills in a high
degree.
In my view the
word
‘unsuitable’
when
used in s. 10 has no
connection
with
the proposed attorney's skill at managing the
donor's
property. A
criticism
made on (sic) a proposed attorney, to
constitute
a ground
for
refusing to register an instrument, must
far
exceed the
corresponding
test applied by the
courts
in applications
for
the removal of a trustee. In Arnott v. Arnott (1924) 58 I.L.T.R. 145, Murnaghan J. approved the guiding principles laid
down
in Letterstedt v. Broers (1884) 9 A.
C.
371,
when
he said at p. 147:-
‘Their Lordships in that
case,
pointed out that if it appeared
clear
that the
continuance
of the trustee
would
be
detrimental
to the execution of the trusts, if
for
no other reason than that human infirmity
would
prevent those beneficially interested
from
working
in harmony
with
the trustee, … the
court
might think it proper to remove him, if,
without
reasonable ground, he refused to resign the trust’.”
Morris P. then recited s. 10 of the Act and said:
35. I agree
with
the approach of Morris P.
36. I
furthermore
agree
with
the observations of Baker J.
concerning
the burden of proof on an objector under s. 10 of the Act as set
forth
in her
decision
In Re SCR [2015] IEHC 308. There, she said:
“12. I accept
counsel's
argument that the burden lies on the objector and that the
decision
must be in
favour
of registration unless it is established that Mr R lacked
capacity
to execute the instrument. The legislation permits objection to be raised on a number of identified grounds and s. 10(4) provides that the
court
may refuse an application on any of these grounds. I accept
counsel's
point that the objectors must
do
more than raise a hypothetical or
formal
ground of objection.”
37. In my view, the Objector in this
case
has
fallen
far
short of
demonstrating
that the Attorney is unsuitable.
The
Decision
to Sell
38. In my view, the
decision
to sell on the part of the Attorney is a perfectly reasonable one in
circumstances
where
the house is uninhabited, has to be maintained, has been broken into twice and has sustained
water
damage.
No member of the
family
lives near to it and it is a
drain
on resources. To the extent that a
decision
to sell
will
convert
the asset into a
cash
asset (and thereby lose the 22.5%
cap
provided by the
Fair
Deal
Scheme)
will
impact on the Attorney, she indicated that she
considered
the asset to be that of the
Donor,
and if all of it
was
to be expended on the
Donor’s
care,
then, as she said “so be it”.
39. Equally, I
do
not believe that the Attorney
could
be
criticised
if she
decided
to let the house. That
would
have the advantage of providing a rental income and
would
maintain the 22.5%
cap.
However, as against that, one has to
consider
the problems that are attendant upon the letting of a residential premises. The provisions of the Residential Tenancies Act 2004 impose obligations
which
are substantial. There
would
be a risk of tenants acquiring rights under that Act. The income
created
would
itself be subject to tax and might affect the
calculation
of the
financial
needs assessment
carried
out by the HSE. In addition, there is the
continuous
problem of managing the asset in the
context
of perhaps unreliable or
difficult
tenants.
40. On balance, she has
decided
to sell rather than let. She has taken account of all relevant
factors.
That is a perfectly sensible and reasonable
course
to take.
Conclusion
41. The
decision
on the part of the Attorney to effect a sale is neither unreasonable, irrational or irresponsible. The
fact
that the Objector
would
prefer that the house be let
does
not make the Attorney’s
decision
unreasonable or irrational or irresponsible. It most
certainly
does
not render her unsuitable to act as Attorney.
42. In these
circumstances,
I
dismiss
the objection and
direct registration of the Enduring Power of Attorney.