In a decision made the 23 February 2024 by Mr. Justice Conleth Bradley the High Court has determined, in the specific factual circumstances of the case, that an Enduring Power of Attorney did not operate to authorise the Attorney to make personal care decisions for the Donor.
Background
The Donor executed an Enduring Power of Attorney (‘EPA’) on 27 May 2016. In early 2019 the Donor exhibited signs of declining physical and cognitive abilities and (after a delay caused by new solicitors being instructed in the matter) the EPA was registered on 26 February 2020.
The Donor’s children had endeavoured to support the Donor in continuing to live at home. However, the Donor was reluctant to allow carers into his home and ultimately, in or about October 2020, the Donor was accepted into residential nursing home care.
The Donor continued to wish to return home, and to die at home, and his children (one of whom was the Attorney) wished to facilitate that. However, differences arose between the children as to whether the Donor should be assessed (in order to identify his specific care needs) prior to him returning home. Those difference gave rise a complaint to the Decision Support Service (‘DSS’) and, when the DSS indicated a timeframe of 9 months for its decision, an application to the High Court.
Issue to be determined
The issue to be determined was whether the EPA gave the Attorney powers to make ‘personal care decisions’ on behalf of the Donor (including where he should live).
Terms of the EPA
The material part of the EPA provided that:
“I, [AA], of [Address set out] born on the [Date of Birth set out] hereby appoint [CC] [Name and Address set out] to act as my attorney for the purposes of Part II of the Powers of Attorney Act, 1996, with general authority to act on my behalf in relation to all my property and affairs subject to the following restrictions and conditions:
(1) I wish to reside in my home at [Address set out] for as long as possible and therefore if I become incapable of living independently and managing my own affairs, in the first instance I direct that my Attorney is to make arrangements for me to be cared for at home by suitably qualified persons.
My daughter, [BB] should be consulted for her views as to my wishes and feelings and as to what would be in my best interests.”
Decision
The full judgment can be accessed here (BB v CC [2024] IEHC 123).
Briefly, Bradley J. held that the EPA was silent as to personal care decisions, was predicated on the assumption that the Donor resided at his home, and that the only decision to be made by the Attorney was whether or not the Donor at some point would need to be cared for at home by suitably qualified persons.
“The reference to ‘subject to the following restrictions and conditions’ is a reference to the qualification on that general authority which is set out in the paragraph which follows and is numbered ‘1’. That qualification is not, however, whether the Donor should live at home or in, for example, a care home. It is unambiguous. It states that the Donor wishes to reside in his home for as long as possible and in the event that the Donor becomes incapable of independent living and managing his own affairs, the Attorney ‘in the first instance’ is directed to make arrangements for the Donor to be cared for at home by suitably qualified persons.”
“The instrument dated 27th May 2016 addresses whether the Donor is living at home by way of independent living or living with care and assistance. It is not a choice between living at home or moving to a care home or other similar place. In the event that the Donor becomes incapable of independent living and managing his own affairs, the Attorney ‘in the first instance’ is directed to make arrangements for the Donor to be cared at home by suitably qualified persons. Notwithstanding the fact that the Donor was moved from care at home to residential care in 2020, I do not believe that it is possible to ‘read in’ to the instrument dated 27th May 2016, or to interpret the phrase ‘in the first instance’, as incorporating the option of moving the Donor to full time nursing home care.”