M.L. v D.W.

JudgeMr. Justice Kelly
Judgment Date08 April 2016
Neutral Citation[2016] IEHC 164
Docket Number[ ]
CourtHigh Court
Date08 April 2016


M. L.

[2016] IEHC 164

[ ]


Property & Conveyancing – Registration of an enduring power of attorney – S. 10 of the Powers of Attorney Act 1996 – Objection to registration – Burden of proof

Facts: The respondent had filed an objection to the registration of an enduring power of attorney executed by his mother/donor in favour of the applicant being the daughter of the donor. The respondent alleged that the applicant had failed to manage the affairs of the donor and put up the house of the donor for sale against the donor's wishes.

Mr. Justice Kelly P. dismissed the objection filed by the respondent and granted an order for the registration of the enduring power of attorney. The Court held that under s. 10 of the Powers of Attorney Act 1996, the objector had to prove the unsuitability of the attorney to the extent that it was detrimental to the interests of the donor and mere allegations that the said attorney lacked the management skills would not be sufficient. The Court found that since beginning, the applicant had been taking extremely good care of the donor and there was nothing wrong in applicant's decision to sell the house of the donor as it was needed to overcome the shortfall created while meeting the expenses of the nursing home where the donor had been residing as a permanent resident and to avoid drain of resources that occurred due to payment of various utilities bills.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 8th day of April 2016

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).


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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.


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...

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3 cases
  • E. and F. v G. and H
    • Ireland
    • Court of Appeal (Ireland)
    • 13 Abril 2021
    ...However, he held that lack of competence, as such, is not a ground to hold an attorney to be unsuitable. He referred to M.L. v. D.W. [2016] IEHC 164 per Kelly P. at para. 33 onwards, relying on the judgment of Morris P. in In re Hamilton [1999] 3 I.R. 310 at p. 314:- “…lack of business skil......
  • N.B. v C.B.
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    ...so. The law again is clear that lack of competence, as such, is not a ground to hold an attorney to be unsuitable; see M.L. v. D.W. [2016] IEHC 164 (Unreported, High Court, 8th April, 2016) per Kelly P. at para. 33 onwards, relying on the judgment of Morris P. in Re. Hamilton [1999] 3 I.R. ......
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    ...of an attorney must exceed those for removal of a trustee were obiter dicta. Counsel noted that in the subsequent case of M.L. v. D.W. [2016] IEHC 164, where Kelly P. agreed with the judgment of Morris P. in Hamilton's case, he did not refer to the trustee test as being the correct test for......

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