GB v HB

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 615
• Court: High Court
• Date: 08 November 2016

[2016] IEHC 615

THE HIGH COURT

Barr J.

IN THE MATTER OF THE POWERS OF ATTORNEY ACT 1996

AND IN THE MATTER OF AN INSTRUMENT CREATING AN ENDURING POWER OF ATTORNEY EXECUTED BY N.B. ON 7TH FEBRUARY, 2014

BETWEEN

G.B.

AND

M.B.

APPLICANTS

AND

H.B.

RESPONDENT

Estate – The Powers of Attorney Act 1996 – Appointment of attorney – Registration of Enduring Power of Attorney (EPA) – Objection – Suitability.

Facts: Following the appointment of the respondent as the attorney by the donor, by execution of EPA, and the notice of intention of the respondent to register that EPA, the applicants now sought an order for the refusal of registration of EPA on the basis that the respondent was unsuitable for being the donor's attorney. The applicants being the children of the donor asserted that the respondent was responsible for causing breakdown of family relations and thus, he was an unsuitable person for acting as an attorney on behalf of the donor. The applicants also objected to the said registration on the basis of certain negligent acts done by the respondent and undue pressure exerted by the respondent on the donor for the execution of the EPA.

Mr. Justice Barr held that it was appropriate to register the EPA, which was executed by the donor in favour of the respondent. The Court, however, observed that the submissions of the applicants concerning negligence and undue pressure were disputes of facts not capable of being resolved in the present proceedings. The Court held that the only thing that the Court needed to ascertain was whether the hostility between the parties was sufficient to render the attorney unsuitable in all the circumstances to act as an attorney under the EPA. The Court held that notwithstanding the breakdown of relationships between the parties, the attorney fulfilled his duties as assigned under the EPA and there was no adverse impact on the administration of the Estates. The Court noted that the respondent did not receive any remuneration or income from the said role of an attorney and thus, he was not unsuitable for acting as an attorney. The Court, however, directed the respondent to provide the details of relevant accounts, sources of income, expenditure of the donor's estate and gave liberty to the applicants to file objections, if any.

JUDGMENT of Mr. Justice Barr delivered on the 8th day of November, 2016

Introduction

1 On 7th February, 2014, one N.B. (hereinafter ‘ the donor’), executed an Enduring Power of Attorney whereby she appointed her son, H.B., as her attorney (hereinafter referred to as ‘ the attorney’). Her remaining two children were named as the notice parties required under the Powers of Attorney Act 1996.

2 On 16th March, 2016, the attorney gave notice of his intention to register the Enduring Power of Attorney (hereinafter ‘ the EPA’).

3 The applicants (hereinafter ‘ the notice parties’) issued a Notice of Objection to the registration of the EPA. In this application, they seek an order pursuant to s. 10 of the Powers of Attorney Act 1996 that the court should refuse to register the EPA on the following grounds:-

(i) that having regard to all the circumstances, the attorney is unsuitable to be the donor's attorney; and

(ii) that undue pressure was used to induce the donor to execute the Power of Attorney.

4 In these circumstances, it is necessary for the court to set out the background to the creation of the EPA and to set out some background to the strained relationship between the attorney and the notice parties.

The Alleged Unsuitability of the Attorney

5 In relation to the first ground that the attorney is an unsuitable person to act as the donors attorney under the EPA, the notice parties stated that they were not making the case that the attorney was unsuitable in a general sense, such that he was dishonest or incapable of managing his mother's affairs, but that having regard to all the circumstances which existed within the family and in particular, having regard to what the notice parties alleged was the breakdown in relationships among the donor's children, that in these circumstances the attorney was unsuitable to take on that role.

6 The notice parties make the case that there has been a fundamental breakdown in the relationship between the attorney and them. They state that this came about in the following way: the donor's husband died in December 2013. The donor was aged 88 years at that time. She was in poor physical health, having suffered from polio as a young woman, resulting in paralysis in her left arm and left leg. This caused her significant mobility difficulties. At that time, she resided in the house in which she had lived with her husband in Co. Dublin. This was a large five bed-roomed house, with a swimming pool in the grounds.

7 A meeting was arranged for Sunday, 12th January, 2014, between the donor and her children, to discuss her living arrangements in the wake of her husband's death. This meeting turned out to be quite acrimonious and it seems to represent the start of what the notice parties regard as the unsuitable conduct on the part of the attorney.

8 In her affidavit, the second named notice party stated that on the Friday prior to the meeting, she had been advised by a cousin, that when her cousin had called to her mother's house on the previous day, she had found the donor extremely distressed. The donor apparently stated that the attorney had told her that the notice parties were planning to put the donor into a nursing home. The notice parties were understandably upset by this, as they state that they had never made any such comments to the donor, nor had any such plans. The second named notice party recounted that, as the meeting was concluding, the first named notice party asked why lies had been told about the notice parties, when the attorney had told the donor that the notice parties were going to sell the house and put her into a home. The attorney stated that their cousin had taken things up wrongly. However, the second named notice party's recollection was that her cousin had been adamant that that was what had been said by the attorney.

9 The second named notice party stated that an argument then arose between herself, G.B. and H.B. concerning his conduct in the past, particularly concerning his performance as executor of his late aunt's Will and concerning his role as accountant for a company in which the first named notice party was a member and director.

10 The second named notice party stated that there had been an inordinate delay in obtaining a grant of probate to their aunt's estate. She stated that at one stage she had contacted the Institute of Chartered Accountants to inquire as to whether she could make a complaint about H.B. for failing to carry out his duties in relation to administering the estate. However, she did not go ahead with the complaint. She stated that she and the other beneficiaries had been very frustrated that it had taken so long for the estate to be administered. She stated that her relationship with H.B. deteriorated and probably became worse after her father died and it transpired that she had been appointed as executor under her late father's Will. Her brother, H.B., had looked after her late father's financial affairs and may have expected that he would have been named as executor in the Will.

11 The second area of contention at this meeting concerned work that the attorney had carried out for a company in which the first named notice party, G.B., was a member and director. In his affidavit, G.B., stated that the attorney had been engaged as an accountant for the company. As a result of his brother's alleged failure to carry out his duties properly, he stated that it was necessary for the company to appoint other accountants and during the handover of files, it was necessary for the group to report his brother to the Institute of Chartered Accountants in Ireland. He exhibited a letter from the chairman of the board of directors dated 26th July, 2016, in which the chairman was highly critical of the manner in which the attorney had carried out his duties as accountant to the company. According to M.B., the relationship between her brothers had been poor since the time that H.B. had ceased working with the company.

12 It appears that this meeting ended on a somewhat acrimonious note, without any resolution of the issue as to what care would be put in place for the donor. It is only proper to point out that the attorney, while agreeing that the meeting was somewhat acrimonious, has denied that any of the allegations of improper conduct made against him, either in relation to his administration of the estate of his deceased aunt, or in relation to the work which he carried out for the hardware company were accurate. His version of these events will be set out later in the judgment.

13 On the following day, 13th January, 2014, the attorney attended at the offices of O' Hare O'Dwyer, Solicitors, in Sutton, Co. Dublin. There he spoke with Mr. Michael O'Dwyer and informed him that the donor wished to create a general power of attorney, but was unable to attend at the firm's offices due to physical disability. Two days later, on 15th January, 2014, the solicitor attended with the donor at her house and she executed a general power of attorney. I will return to the execution of this document later in the judgment, but for now it is simply necessary to note that it was executed on that date.

14 On 22nd January, 2014, the second named notice party, M.B., and her husband, went to the donor's house with the sum of €1,000 in cash, which they intended to give to the donor as part of the upkeep and maintenance costs in respect of the donor's property at Rath in Co. Kerry, which they had used on a frequent basis as a holiday home. M.B. stated that when she got to the house, she was...