N.B. v C.B.

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 May 2020
• Neutral Citation: [2020] IEHC 216
• Court: High Court
• Date: 06 May 2020

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 F.B. ON THE 6TH DAY OF AUGUST 2008

BETWEEN

N.B.

AND

J.B.

APPLICANTS

AND

C.B.

AND

I.B.

RESPONDENTS

[2020] IEHC 216

Richard Humphreys

THE HIGH COURT

Enduring power – Registration – Powers of Attorney Act 1996 – Applicants seeking an order registering the enduring power – Whether attorneys were unsuitable

Facts: Before the High Court was a notice of motion seeking an order under s. 10 of the Powers of Attorney Act 1996 registering the enduring power in this case. That application gave rise to conflict between the five siblings who were children of the donor. Two of those siblings were the applicants, being the named attorneys. A third sibling supported the application and the other two siblings were the objecting respondents. Both attorneys were said to be unsuitable.

Held by Humphreys J that the enduring power be registered under s. 10 of the 1996 Act given that he found the statutory criteria to have been met. As far as the minor typographical errors in the power were concerned, he did not consider that they were such to require invocation of s. 10(5)(b), but in case he was wrong about that he would order that he would rely on subs. (5)(b) if and insofar as it was necessary to do so. Subject to hearing the views of the parties, he was provisionally minded, having regard to the findings of fact, to direct the attorneys pursuant to s. 12(2) of the 1996 Act along the lines of draft suggested directions to be circulated to the parties’ legal representatives. He adjourned the matter for a short period to give the parties an opportunity to seek to agree whether directions along the foregoing lines were required and, if so, what the wording of those directions should be.

Humphreys J, on 12th May, 2020, having heard the parties further on this issue, by consent gave the following directions under s. 12(2) of the 1996 Act: (i) the donor to remain resident in S. Nursing Home absent medical emergency; (ii) the attorneys to make all outstanding CGT returns within 28 days; (iii) all of the donor’s income shall be paid into a bank account in her name, out of which all of her living and care expenses and future legal liabilities shall be paid (save and except such care expenses and legal liabilities discharged by the attorneys or either of them in accordance with these directions); (iv) the attorneys shall sell the donor’s FBD shares and pay the net proceeds thereof into her bank account after deduction of all CGT (arising from the disposal of the FBD shares only) and any other cost or expense arising in connection with the disposal thereof; (v) to record the first applicant’s undertaking to pay any CGT tax, interest surcharge and penalties charged by and/or payable to the Revenue Commissioners in connection with the disposal of the donor’s Glanbia plc shares within 28 days; (vi) the attorneys shall not undertake any further dispersal of donor’s property save on day-to-day living and care expenses of the donor, gifts of a nominal value (not exceeding €50 in each case) from her to grandchildren and/or her carers on occasions such as birthdays, Christmas and events of religious and/or personal significance to the recipient, and future tax liability of the donor, if any; (vii) to record the first applicant’s undertaking to discharge:(a).any and all lawful nursing home fees, expenses and charges arising from the care of the donor in a nursing home; and (b) the fees, expenses and costs for care provided to the donor by registered carers out of the gross rental income from B. House and to thereafter remit the balance thereof to the donor’s bank account during lifetime of the donor; (viii) the attorneys to provide their siblings with a written statement setting out lodgements and withdrawals from the donor’s account on an annual basis; (ix) in addition to the written statement provided by the attorneys, to record the first applicant’s undertaking to provide on an annual basis a written statement to his siblings setting out: (a) the gross rent received from B. House; (b) the total amount paid by the first applicant in relation to nursing home fees, expenses and charges for the period, with particulars of the said fees, expenses and charges; (c) the total amount paid by the first applicant to registered carers caring for the donor during the period; and (d) the balance remitted to the donor’s bank account. Humphreys J ordered that 6/7ths of the costs be granted to the applicants and, by consent, that there be an order under s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 restricting publication of information tending to identify the donor and her children.

Order granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of May, 2020

1 Few things seem to have the ability to bring simmering family tensions to the surface more than disputes involving inheritance, distribution of property, and care of parents with declining capacity; and if all factors come together one has the ingredients for a perfect storm of family dysfunction. Adding contested litigation to that mix raises the stakes alarmingly given the potentially significant legal costs thereby generated. Hence (as it happens, unsuccessfully), I encouraged the parties here to try to resolve their differences and with their agreement discussed with them all the various possibilities towards resolution that might hypothetically be open. I do not hold the absence of agreement against anybody, I disregard any options that are not formally before the court and I consider the present application on its merits. In particular I disregard communications between the parties during the currency of the proceedings that were aimed at settlement of the matter, even though not expressed to be without prejudice.

2 Before the court is a notice of motion seeking an order under s. 10 of the Powers of Attorney Act 1996 registering the enduring power in this case. That application has given rise to conflict between the five siblings who are children of the donor. Two of those siblings are the applicants, being the named attorneys. A third sibling, E.B., supports the application; and the other two siblings are the objecting respondents.

3 I was immensely assisted by Mr. Liam O'Connell B.L. for the applicants and by Mr. John Foley, Solicitor, for the respondents, and I would commend both for their excellent and focused cross-examination and submissions. E.B. also addressed the court in person in support of the attorneys. I have considered all the material that was duly submitted including all affidavit and oral evidence and oral submissions of the parties.

Scope of objection

4 Both attorneys are said to be unsuitable. The objection to J.B. seems to be focused on the point that she went along with N.B. (it is suggested, over-trustingly), and did not make her own inquiries, so it is essentially a derivative objection. Mr. Foley submits that both attorneys stand or fall together and that is essentially the correct approach in the circumstances of this case.

5 The separate point of her living outside the State was only faintly pressed, and indeed was not specifically put to her, but such an objection in itself does not amount to a valid ground of unsuitability especially in a globalised modern world. It would be an insular court indeed that would see that as a disqualifying problem. Doubly so here where J.B. was already living abroad at the time the power was executed.

6 The objection to N.B. is focused exclusively on the decision to sell shares of the donor to fund works in B. House, in which the donor had a right to reside, and on the circumstances surrounding those steps. That decision seems to have been taken in late 2016 and carried into effect with the sale on 30th December, 2016 and to further tranches of sales into 2017. The notices of objection were lodged out of time, but it is not suggested that they are invalid on that basis.

Onus is on the objectors

7 The law is clear that the onus of proof of unsuitability of an attorney is on the objectors: see in Re S.C.R. [2015] IEHC 308 (Unreported, High Court, 20th May, 2015), per Baker J.; and in Re W. [2000] EWCA Civ J1211-1, per Arden L.J., as she then was, at para. 47. As the latter put it as Arden J. in Re E. [2001] Ch 364 at 377 at para. 32, “the court has to be satisfied not as to the chosen attorney's suitability, but rather to his unsuitability.”

8 Ultimately, in the present case the objectors may have laid the basis for directions to be given under s. 12(2) of the 1996 Act, but they have failed to overcome the distinctly higher onus of proof that rests on them to demonstrate the unsuitability of the attorneys. There are a number of independent but mutually reinforcing reasons for that conclusion.

The decision complained of was one by the donor and not the attorneys

9 The first problem for the objectors is that even if the scheme to sell the mother's shares and revamp B. House was a misstep, the mother herself decided to do it, and it has not been established in evidence that she lacked capacity at that time. In the absence of that lack of capacity being positively proved, it was therefore in law a decision not of the attorneys, but of the donor, and thus it cannot be said to render the attorneys unsuitable.

Assessment of witnesses

10 More fundamentally, having seen and heard the applicants and their witnesses and on the other hand having seen and heard the respondents, I broadly reject the evidence of the respondents where it differs from that of the applicants and their witnesses.

11 C.B. in particular came across as a witness with something of an agenda. Clearly, his history is one of providing minimal assistance in relation to the care of the donor and he seems to have also had something of a history of...