Judge critical of delay in registering power of attorney for elderly woman

The president of the High Court has strongly criticised a delay over several months in registering an enduring power of attorney (EPA) concerning an elderly woman with dementia.

Arising from the delay, which means a hospital caring for the woman since late last year remains unpaid, the HSE had applied to have the woman made a ward of court.

Mr Justice Peter Kelly said this week the 85-year-old woman, whose estate is likely to have substantial assets of some €950,000, "deserves better" when she goes to the trouble of executing a power of attorney.

What happened was “below par” insofar as the attention she should have got, he said.

He said he was taking the woman into wardship and appointing the general solicitor for wards of court, Patricia Hickey, as the committee to represent her interests.

Noting the woman is currently in a four-bed unit with no bathroom attached, he directed that matter should be investigated as it appeared this was not “an optimum placement” for her.

He also expected there would be “no nonsense” about the holders of the EPA handing over the keys to the woman’s house and various financial documents provided to them when the woman went into hospital.

If there was any difficulty, the general solicitor can apply to the court as she now has lawful authority to take possession of the ward’s assets, he said.

The woman executed a power of attorney in April 2016. Under the relevant legislation, once a donor of a power of attorney lacks capacity, the holder of the power “shall” apply as soon as practicable to register an Enduring Power of Attorney.

Arising from concerns the woman had lost capacity last year but an EPA had not been registered, the HSE petitioned in December for wardship and Mr Justice Kelly directed an inquiry concerning capacity. Two doctors later certified the woman lacked capacity.

‘Severe dissatisfaction’

When the holders of the EPA sought to set aside the wardship inquiry, the judge granted liberty to bring a motion to that effect but the motion was not brought within the time specified.

This week, the judge expressed “severe dissatisfaction” that the attorneys had failed to comply with the court’s directions and said he was taking the woman into wardship because he had “no confidence” the attorneys’ duties would be carried out immediately.

He queried whether the attorneys and solicitor acting in the matter had “any sense of responsibility” concerning their obligations to act on behalf of the woman.

He was told one of the attorneys had been ill for a time, was given time to respond to the HSE’s concerns but that time had lapsed, and is also willing to discharge the payments sought by the hospital.

Counsel for the attorneys said there had been efforts to establish the situation concerning the woman’s cognitive abilities before registering the EPA and there was also an issue concerning the Fair Deal scheme and that the woman would not qualify under that.

The judge asked how did any of that affect the obligation to register the EPA when the donor of that power lacks capacity.

Counsel said there was an attempt to register the EPA last January and reiterated the attorneys willingness to act under the EPA.

The judge said there was a “cock and bull story” about one of the attorneys being in hospital when a medical certificate stated he was suffering from back pain from mid-February and was clear of that by late March. The hospital issue was a “nonsense” excuse, he said.