J. O'N and Another v N.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 08 February 2024
• Neutral Citation: [2024] IEHC 72
• Court: High Court

In the Matter of the Powers of Attorney Act, 1996 and in the Matter of An Instrument Creating An Enduring Power of Attorney

Enduring Power of Attorney Executed By Ms H.D. On the 7th Day of September 2020

Between

J. O'N. and S.M.G (the Attorneys of Ms. H.D.)

Applicants

and

N.B.

Respondent

[2024] IEHC 72

THE HIGH COURT

Judgment of Ms. Justice Nuala Jackson delivered on the 8 ^th day of February 2024 .

INTRODUCTION

1 There is no doubt that one of the most significant challenges which any family faces is coming to terms with the ageing of a parent and the making of appropriate arrangements in that context. This is particularly difficult when the ageing process cruelly includes illness and incapacity. Informed by emotion, family history and, above all, deep affection, perspectives may differ as to the appropriate route of travel and this, unfortunately, leads to acrimony and divergence despite there being a commonality of result sought to be achieved namely that the parent be safe, comfortable and protected. In this case, although opinions have differed, I have no doubt that the actions of all have been primarily dictated by parental affection.

2 ‘H.D.’ (‘the donor’) executed an enduring power of attorney (‘ EPA’), pursuant to the provisions of the Powers of Attorney Act, 1996 (‘the 1996 Act’), on the 7 ^th September 2020. The application herein is brought by two of her daughters, the first and second named attorneys (hereinafter ‘the first named attorney’ and ‘the second named attorney’), being the persons so appointed pursuant to the said EPA, and their application is for the registration of the EPA aforementioned. I am asked to rule upon an objection to such registration on a number of bases which is made by the donor's son (‘the Respondent’). The donor has four children. The fourth child, her third daughter, is supportive of the application for registration and gave evidence before me so indicating.

THE POWERS OF ATTORNEY ACT, 1996

3 The statutory framework introduced by the 1996 Act was novel for this jurisdiction and clearly represents a desirable legal facility for persons who wish to make arrangements for the management of their affairs when and if they cease to be capacitous. An EPA is executed at a time when the donor has capacity and it thereafter sits in abeyance, ready to be activated when capacity is lost. The activation process is through registration by application to the High Court. This is such an application.

4 As stated by Baker J. in A.A v. F.F [2015] IEHC 142:

“46. The statutory provision which enabled a person to put in place an alternative or substitute decision maker who would have authority to act should the donor become incapable is an important means by which the law recognises the autonomy of a person to choose such a substitute or alternative.

47. A person who takes on the role of an attorney and who acts under an enduring power of attorney during the incapacity of another takes on an onerous responsibility, and one in which the donor of the power is vulnerable and often elderly. The ability to choose and appoint a person to act on one's behalf in the event of incapacity is an important protection to a person, and an important means by which the law respects the wishes of a person as to by whom and how his or her financial and personal care affairs will be dealt with in the event of incapacity. The possibility of creating such a power by instrument was seen as an advance on the then law which required that even very modest estates came under the protection and scrutiny of the President of the High Court in the wardship jurisdiction of that Court, or occasionally of the Circuit Court. The involvement of a committee and of the High Court or Circuit Court interposed a person other than a person chosen by a person to manage his or her affairs. The wardship jurisdiction also carried considerable costs and expenses for the ward and the committee had limited powers to act on behalf of the ward without express authorisation. The law as it existed before the coming into operation of the Act in 1996 in many cases involved the court in unnecessary administrative duties which could in a normal case be dealt with competently and fairly by a person chosen for that purpose, a person who would be assumed to have the best interests of the donor to the forefront of any decision making process.”

5 There are some statutory provisions in the 1996 Act which I consider important to reference at the outset:

• • “Mental incapacity” is defined in section 4 of the 1996 Act as being: “incapacity by reason of mental condition to manage and administer his or her own property and affairs and cognate expressions shall be construed accordingly.”

• • There is a statutory assumption of capacity where this is required, section 4(3) of the 1996 Act states:

  “If any question arises under this Part as to what the donor of the enduring power might at any time be expected to do it shall be assumed that the donor had the mental capacity to do so.”

• • Applications for registration (such as is currently before me) are provided for in section 9 of the 1996 Act. The provisions of this section have been complied with herein. As required by section 9(4), I have been provided with a report from the donor's General Practitioner confirming that she “has significant cognitive impairment now that she has no longer got the mental capacity to manage her finances and the EPOA should be registered now.” Indeed, it was agreed by the attorneys and by the two notice parties (one such being the Respondent and the other the donor's fourth child) that the donor, regrettably, had reached a stage of being unable to manage her affairs and has significant cognitive impairment.

• • Section 10 of the 1996 Act provides for the within application. It will be considered in greater detail below.

• • It is important to state that this Court retains a supervisory jurisdiction post-registration, pursuant to section 12 of the 1996 Act, which may be invoked by “the donor, the attorney or any other interested party”. There is no definition of “other interested party” in the 1996 Act but it is clear that notice parties under the EPA would be such. Indeed, provision for oversight by this Court pre-registration is made in section 8 of the 1996 Act. The distinction between EPAs and other reliefs in the context of incapacity does not require to be examined in this decision but it should be noted that the jurisdiction of this Court in the context of EPA is one which may be invoked in accordance with the terms of the legislation and is not unbounded, which position is in keeping with the autonomous nature of the EPA and its creation.

THE OBJECTIONS

6 The Respondent herein has raised a number of objections to registration pursuant to section 10(3) of the 1996 Act. In his first affidavit herein, he referenced objections under sub-section (3)(a), (b), (d) and (e). At hearing, the Respondent clarified that his objections were pursuant to sub-section (3)(a), (d) and (e) only. A number of detailed affidavits with exhibits were sworn in the context of this application and I heard oral testimony from the solicitor for the donor/attorneys, both of the attorneys, the Respondent and the second notice party. The averments in these affidavits detailed many aspects of family history and family life as regards the donor's circumstances and, as with all families, this family has faced times of challenge and times of joy, and everything in between. Sibling relationships have ebbed and flowed as indeed have parent/child relationships. This is but the normal wear and tear of life and I am satisfied that it is no more so than normal in this case. I was, however, impressed by the support which they had offered each other (and the donor) in the context of the unique challenges of the outbreak of the Covid pandemic. Many of the averments were not pertinent to the issues which I must decide but I have considered them in their totality. Those averments which I consider to have been of particular import in the context of this application are detailed below.

7 I will deal with these objections sequentially.

Objection under S.10(3)(a) of the 1996 Act: that the power purported to have been created by the instrument was not valid.

8 During the course of the hearing herein, the Respondent informed me that his challenge on this ground was based on the incapacity of the donor at the time of execution of the EPA due to an adverse reaction which she was experiencing from medication for depression. He indicated that this was an adverse reaction which she had previously experienced for the same reason.

9 The Respondent avers, inter alia:

• i) The first named attorney had taken the donor to the donor's doctor who had prescribed anti-depressant medication for the donor. This would appear to have been on or about the 21 ^st August 2020. There is reference to the donor previously experiencing an adverse reaction to such medication. There is reference to the donor subsequently (in May 2022) being taken off anti-depressants as the Respondent had advised the doctors that he was aware of a previous bad reaction. The Respondent queries whether the doctor who determined capacity following the visit of the 9 ^th September 2020 was informed about the side effects and reaction of the donor to the medication referenced.

• ii) At the time of execution of the EPA, the donor was depressed and had recently been put on medication that has a serious and known 14/28 day warning of adverse side effects, compromising safety, wellbeing and life, thus bringing the mental state of the donor into question.

• iii) The doctor confirming capacity lacked information and was not a psychologist.

• iv) The donor indicated at some previous time that she did not like how she felt on anti-depressants, that they did not agree with her and she had come...