The family of an elderly woman with advanced dementia has been urged by the High Court president to appoint a mediator in a bid to resolve their wider disputes over her care.
“They would be much better focusing their time and attention on their mother rather than fighting with each other as to how she should be cared for,” Mr Justice David Barniville said.
He made the comments in a judgment rejecting an objection by a son of the woman to her appointment of two of his sisters as her attorneys under an enduring power of attorney (EPA).
Executed in late 2020, the EPA gives the daughters general authority to act on their mother’s behalf in relation to all her property and affairs. The woman had directed they are to receive no remuneration for doing so and the EPA was to be effective during “any subsequent mental incapacity”.
Ireland’s Greenest Places: From Dún Laoghaire’s active travel to Kiltimagh’s biodiversity park - some of the entries so far
Intel to seek almost 200 mandatory redundancies at Leixlip plant
Netflix, Prime Video, Apple TV+, Paramount+: 10 of the best new shows to stream in July
How rural Ireland is turning to vacant property grants for development
The two attorneys, supported by some of their siblings, applied for registration of the EPA but because of the objection by their brother, which was supported by other siblings, the matter had to be decided by the High Court.
Neither side was legally represented at the hearing earlier this month, and each side presented their case in a “courteous manner”, Mr Justice Barniville said.
Despite their differences, all had the best interests of their mother at heart and all are very happy with the care she is currently receiving in a residential facility, he noted.
It was “unfortunate” that it was not possible for them to agree how their mother’s interests could be best served and his suggestion of mediation at the outset of the hearing had received an “unenthusiastic” response.
Because the objecting son disputed the validity of the EPA, which he alleged was created in a “very secretive” way which divided the family, the court had to decide the matter in any event but was continuing to urge them to try and resolve their differences, the judge said.
In his conclusions, he rejected claims that when the donor made the EPA in November 2020, she lacked capacity to do so.
Her GP had signed the relevant part of the EPA stating her opinion was the donor had mental capacity “with the assistance of such explanation as may have been given” to her, to understand the effect the creating the power, the judge said.
On foot of that and other evidence, including from a solicitor who said she advised the donor fully in relation to making an EPA and was satisfied the woman fully understood what was explained to her and was acting freely, he ruled the EPA is “valid and subsisting”.
He was satisfied the woman’s mental condition and capacity deteriorated over 2021, and as of May 2024 she had become “mentally incapable” within the meaning of the EPA Act to manage her affairs. There was no dispute among the family about that, he said.
There was no evidence to support the objector’s claim the two attorneys are unsuitable to be their mother’s attorneys and he was also satisfied no fraud or undue pressure was used to induce the woman to create the EPA, the judge said.
Insofar as another sister complained about the care provided to their mother by her two attorneys during 2021-23, and contrasted that with the care provided by the complainant and the objecting brother, the judge said it was not necessary for him to make findings on that issue. He was satisfied all the siblings did their best for their mother as her dementia deteriorated, ultimately requiring her residential placement.
The EPA should be registered, he directed.
