A.A. v F.F.
|Ms. Justice Baker
|20 February 2015
| IEHC 142
|20 February 2015
In the Matter of the Powers of Attorney Act, 1996 in the Matter of an Instrument Creating an Enduring Power of Attorney Executed by C.F. and F.F. on the 1st November 2007
 IEHC 142
Ms. Justice Baker
THE HIGH COURT
The Powers of Attorney Act, 1996 – Mental Capacity – Practice and Procedures – Accountability – Practice and Procedures – Agent or Trustee – Wardship – Legal Documents
Facts: This case was concerned with the extent to which the attorney appointed by a registered power of attorney could be supervised by the court, or was accountable to the court or to any other person who had the interests of the donor in mind. By the instrument the donor appointed his wife, G.F. and F.F., his daughter and the only child of his second marriage to act jointly as attorneys for the purposes of Part II of the Powers of Attorney Act 1996. The donor opted to give the attorneys ‘general authority to act on my behalf in relation to all my property and affairs.’ Additionally, the attorneys were given power to make personal care decisions for the donor without any stipulation for prior consultation with any person as to their views as to his wishes and feelings on certain identified matters. Thus, the attorneys had general unrestricted power in relation to business and financial affairs as well as personal care decisions without the need to consult or notify any persons. The application was brought by originating notice of motion by five children of the donor from his first marriage. The respondent was the sole surviving attorney appointed under the power of attorney, her mother, the other attorney, having died on the 7th October, 2013. The applicants sought directions and orders requiring the attorney to render accounts and to produce records, of the ‘management and disposal by the Attorney of the property and affairs of the donor and details of all remuneration and expenses claimed by the Attorney from the assets of the donor.’ They also sought details of all personal care decisions taken by the attorney in respect of the donor, an order cancelling registration of the instrument on the ground that the attorney was unsuitable to act as attorney and/or that the registration of the instrument was defective and not in compliance with the Act of 1996. The Court was also asked to determine the following issues: (1) Whether and to what extent an attorney acting under a registered enduring power of attorney was obliged to account to the High Court; (2) Whether and to what extent an attorney acting under a registered enduring power of attorney was obliged to account to other persons in a close family connection with the donor; and (3) The role of the High Court in regard to a registered power of attorney and whether the High Court had a general or specific supervisory role in respect of the exercise of the function by an attorney, and how such supervisory role was to operate in practice.
Held by Justice Baker in light of the available evidence and submissions presented that the respondent was an agent of the donee and that the role of the attorney acting under an enduring power of attorney was not as a matter of law akin to the role of a committee acting in ward-ship as suggested by the applicants. According to the Court, it was clearly intended that the attorney appointed under an enduring power would be a substitute, and that the role of the High Court was not to another class of wardship jurisdiction, or arise from the jurisdiction in equity as exists over a trust. Thus, Justice Baker rejected the argument that the High Court had supervisory powers by analogy with those in wardship, and that the Court had inherent powers arising in equity or at common law. The role of the Court it was determined had a statutory origin. Acknowledging that the Court had the power to require the attorney to furnish information or produce documents, it was reasoned in light of the existing legislation that the duty to account would seem to arise by virtue of a departure from previous well established patterns of dealing by the donor, or by virtue of a perceived financial crisis or loss that might arise as a result of dealings by the attorney. Justice Baker was of the opinion that the applicants had not raised a sufficient query to trigger such interference by the Court. The donor did not expressly direct consultation with them or any of them for the taking by his attorneys of any decision, and such could not in the circumstances be implied into the express terms of the instrument by the Court. However, it was acknowledged that the applicants had raised certain matters that did give rise to at least an arguable ground that required either directions from or the assistance of the Court, including matters pertaining to the administration of the estate of the late G.F., property values and expenditures to name but a few. In concluding, it was determined that the attorney did have an obligation, having regard to the matters as they had evolved, to furnish to the Court a report from her accountant which should at the minimum set out the following: (a) Details including valuations of the assets currently held by the donor; (b) Details including valuations of the estate of her late mother, the other attorney, insofar as these did not pass by survivorship; (c) Details of the income of the donor and the amount of tax paid, such details to be given for the years 2013-2014; (d) An analysis of the expenditure incurred in the years 2012, 2013 and 2014; (e) Precise details of the nursing and other medical expenses of the applicant over the past 12 months; (f) Projected income for the year 2015, and the basis of the projection; and g) The current position with regard to the property in France, its valuation, the cost of the ongoing maintenance of that property including tax and ordinary maintenance.
The Powers of Attorney Act, 1996 (the ‘Act of 1996’) created for the first time the possibility in Irish law of executing a power of attorney which could continue to operate when the donor of the power is or is becoming mentally incapable. The enduring power created under the Act, the characteristics of which are defined by statute, enables a person to put in place a system by which a person or persons of their choice will manage their financial affairs during an anticipated or possible incapacity in the future. The legislation was enacted in the context of a lacuna in the existing law because a power of attorney ceased to operate at common law if the donor of the power became mentally incapable.
This case relates to the extent to which the attorney appointed by a registered power of attorney, that is a power which becomes operative by virtue of registration under the statutory provisions, may be supervised by the court, or is accountable to the court or to any other person who has the interests of the donor in mind.
Section 5(1) of the Act of 1996 defines a power of attorney as being an enduring power if:-
‘the instrument creating the power contains a statement by the donor to the effect that the donor intends the power to be effective during any subsequent mental incapacity of the donor and complies with the provisions of this section and regulations made thereunder.’
Section 5 provides that an enduring power of attorney may permit the attorney to make personal care decisions on behalf of the donor, may confine him or her to making such personal care decisions or may confer general authority. Section 6 of theAct deals with the scope of the authority of an attorney acting under an enduring power and such authority is stated by s. 6(1) to derive from the instrument creating the power. The Act permits a broad range of instruments, including an instrument that confers general authority in relation to all or a specified part of the property and affairs of the donor, and may or may not be conditional or restricted by the stipulations in the instrument.
Section 6(2) provides in regard to an enduring power that where the instrument is expressed to confer general authority on the attorney:-
‘it operates to confer, subject to the restriction imposed by subsection (5) and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.’
The forms of the instruments creating an enduring power of attorney are set out in the schedules to S.I. 196 of 1996 and C.F., the donor, in the presence of his solicitor executed a power of attorney in the standard statutory form on the 1st November, 2007 contained in the first schedule. Such an instrument creates a power which is wider in import than the form provided in the second schedule, which gives a power of attorney only in respect of personal care decisions. The power was expressly stated to be effective during any subsequent mental incapacity of the donor, and thus takes effect as an enduring power under the Act.
By the instrument the donor appointed his wife, G.F. and F.F., his daughter and the only child of his second marriage to the said G.F., to act jointly as attorneys for the purposes of Part II of the Act of 1996. The standard form provided in the S.I. allows the donor to delete certain provisions which he or she chooses not to apply to the power, and the donor did indeed make several deletions and thereby opted to give to the attorneys thus appointed ‘general authority to act on my behalf in relation to all my property and affairs.’
In addition the attorneys were given power to make personal care decisions for the donor without any stipulation for prior consultation with any person as to their views as to his wishes and feelings on certain identified matters as follows:-
•Where I should live
•With whom I should live
•Whom I should see and not...
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