Re Power of Attorney Act, 1996

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 20 May 2015
• Neutral Citation: [2015] IEHC 308
• Court: High Court
• Date: 20 May 2015

SCR, In Re

IN THE MATTER OF AN APPLICATION FOR REGISTRATION OF AN ENDURING POWER OF ATTORNEY OF SCR DATED 1 st NOVEMBER 2013

[2015] IEHC 308

THE HIGH COURT

Property & Conveyancing – Powers of Attorney Act 1996 – Enduring power of attorney – Registration – Incapacity.

Facts: An instrument was executed creating an enduring power of attorney in the statutory form in favour of the son as named attorney. An application pursuant to s. 10 of the Powers of Attorney Act 1996 was made to register the Power of Attorney. The other two children of the donor raised objections claiming that the enduring power was invalid, was created by virtue of fraud or undue influence, and that the named attorney was unsuitable to act in that capacity. The objectors believed that the donor suffered from a cognitive incapacity as a result of a dementia or alzheimer's condition at the time of the execution of the instrument. A question arose whether the donor had the cognitive capacity at a level sufficient to understand the effect of giving decision-making authority to the son.

Ms. Justice Baker held that the application to register the power of attorney would be refused. The Court held that the objection to registration would be sustained. The Court observed that the scope and purpose of the power was neither fully explained to the donor nor the donor understood it. The Court adopted the analysis in Fitzpatrick v. F.K. [2008] IEHC 104 in applying the theory of legal assessment of such capacity and rejected the argument of medical assessment of capacity. The Court observed that the cognitive capacity of the donor would not be at a level sufficient to understand the effect of the action taken.

1 1. This is a contested application pursuant to s. 10 of the Powers of Attorney Act 1996 to register an enduring power of attorney (" EPA") and the judgment will focus on the question of whether the donor of the power had the capacity to execute the instrument creating the power made by him on the 1 ^st November, 2013.

Facts

2 2. SCR executed an instrument creating an EPA in the statutory form on the 1 ^stNovember, 2013 in the presence of his solicitor Anthony F O'Gorman. By the power he appointed his son ER to act as attorney for the purposes of the Powers of Attorney Act 1996, with general authority to act on his behalf. Notice of the execution of the power was required to be, and was, given to his two other children DR and FR.

3 3. Application was made by the attorney so nominated to register the power on the 17 ^th January, 2014, and notice of objections were received in each case dated the 14 ^th April, 2014 from DR, the eldest daughter of the donor, and from his younger daughter, FR.

4 4. The objection is made to the registration of the instrument on the grounds that:-

1 ) The enduring power was not valid

2 ) That the named attorney is unsuitable to act in that capacity

3 ) That fraud or undue influence was used to induce the donor to create the power

The objections follow the language in s. 10(3) of the Act.

5 5. The matter first came on before me on the 21 ^st day of January, 2015 and there was before me on that occasion a long affidavit of objection of DR sworn on the 14 ^th April, 2014, the replying affidavit of ER sworn on the 18 ^th July, 2014, and the affidavit of Anthony O'Gorman solicitor sworn on the 2 ^nd September, 2014. The affidavit grounding the objection deposed to a belief that the donor was at the time of the execution of the instrument suffering from a cognitive incapacity as a result of a dementia or Alzheimer's condition, and various examples of behaviour which were claimed to illustrate this frailty were given. There was exhibited a HSE standard assessment record in which entries by medical and social workers staff who had treated the donor showed a deteriorating cognitive function and in particular there was noted on the 30 ^th August, 2013 that Mr R was suffering from "senile dementia + + +"

6 6. In the light of the evidence and in the exercising of my jurisdiction under s. 10(2), I directed further enquiry. A further affidavit of Dr Doyle sworn on the 20 ^th April 2015 and a supplemental affidavit of objection was sworn by DR on the 9 ^th January, 2015 and there was also adduced on affidavit of the 19 ^th January, 2015 by NW, a friend of the donor, which dealt primarily with the question of the suitability of the donor.

The Powers of Attorney Act, 1996: the burden of proof

7 7. The court's power in the determination of an application to register an EPA is one conferred by statute and the court has no inherent jurisdiction to for example make a conditional registration, or vary the effect of an instrument. Counsel for the applicant argues that the burden of proving the instrument is invalid lies with the objectors. Section 10(1) provides as follows:

"On an application for registration being made in compliance with section 9 the Registrar of Wards of Court shall unless subsection (2) applies, register the instrument to which the application relates."

8 8. Reliance is placed on the judgement of the Court of Appeal of England and Wales In the matter of W [2000] EWCA Civ J1211-1 as authority for this proposition.

9 9. The English Enduring Powers of Attorney Act 1985 is not identical to s. 6(4) of the Irish Act. The English s. 6(6) provides that:-

"If in a case where subsection 4 above applies, any of the grounds of objection in subsection 5 above is established to the satisfaction of the court, the court shall refuse the application but if, in such a case, it is not so satisfied, the court shall register the instrument to which the application relates."

10 10. Lady Justice Arden took the view that the subsection "clearly proceeds on the basis that the grounds of objection have to be proved". She went on to say:-

"Accordingly, as I see it, the legal burden remains throughout on the objector, the person presenting the notice of objection. If the objector fails to establish his objection, the instrument must be registered. The court has no residual discretion to refuse registration."

11 11. The English Act does create a certain statutory presumption of capacity, or certain evidential matters which are squarely placed at the door of the objectors. The Irish Act does not so clearly create a statutory presumption but I consider that in the case of an application to register an EPA no great evidential difficulty arises from the proposition advanced by counsel for the applicant, namely that a document which appears valid on its face will be presumed to be valid, and the instrument should be registered. I consider that that approach is consistent with the scheme of the legislation, which provides a procedure for registration and in the absence of objections and provided due execution is shown, the legislation seems to envisage that registration will occur.

12 12. I accept counsel's argument that the burden lies on the objector and that the decision must be in favour of registration unless it is established that Mr R lacked capacity to execute the instrument. The legislation permits objection to be raised on a number of identified grounds and s. 10(4) provides that the court may refuse an application on any of these grounds. I accept counsel's point that the objectors must do more than raise a hypothetical or formal ground of objection.

Summary of affidavit evidence on question of capacity

13 13. The objection to the registration of the power is firstly grounded on an assertion that the instrument is not valid in that the donor did not have at the date of the execution of the power capacity to create an EPA. It is asserted in particular that the donor suffered from senile dementia and that his condition was such that he did not understand the nature and import of the document executed by him.

14 14. The application for registration in accordance with the statutory requirement was accompanied by a certificate of Dr. Gormely which states:

"He is suffering from dementia. It is my opinion that the Enduring Power of Attorney should be registered by reason of Mr. Rawson's mental incapacity in relation to all his affairs."

Mr R was admitted to a nursing home on the 22 ^nd October, 2013 and he has the benefit of the Fair Deal Scheme operated by the State from which is derived the bulk of the cost the nursing home.

15 15. Counsel accept, as they must, that the appropriate date of assessing whether Mr R had the capacity to execute the EPA is the date of execution namely 1 ^st November, 2013. The instrument was executed in the nursing home where Mr R continues to reside, and in the presence of his solicitor Anthony O'Gorman whose affidavit evidence is that he attended at the nursing home accompanied by his secretary. The donee of the power ER was present as was the donor's friend NW. Mr O'Gorman in his affidavit states that he found Mr R to be "in good enough condition to discuss his requirements with me in rational manner". He said that he explained to Mr R the "concept and meaning" of an EPA and that ldquo;it was for his benefit so that his son, E, who had agreed to act as his attorney, and who "looked after his affairs in any event, would be in a position to discharge his accounts which would be for his benefit and his benefit alone". Mr O'Gorman says that after this discussion the donor "made it quite clear that he wanted whatever was to be dealt with, dealt with now".

16 16. It seems that in the presence of Mr O'Gormnan the donor made contact with the eldest daughter DR and Mr O'Gorman says that he could overhear the phone conversation and that he had "no doubt that DR fully understood" what her father was saying and that she was "very positive" that such an instrument be executed. The other child of the donor was not contactable by phone on that day.

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