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Cite as: [2015] IEHC 308
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Judgment
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Neutral Citation [2015] IEHC 308 THE HIGH COURT IN THE MATTER OF AN APPLICATION FOR REGISTRATION OF AN ENDURING POWER OF ATTORNEY OF SCR DATED 1st NOVEMBER 2013 JUDGMENT of Ms. Justice Baker delivered on the 20th day of May, 2015 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 1st November, 2013. Facts 3. Application was made by the attorney so nominated to register the power on the 17th January, 2014, and notice of objections were received in each case dated the 14th April, 2014 from DR, the eldest daughter of the donor, and from his younger daughter, FR. 4. The objection is made to the registration of the instrument on the grounds that:-
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 5. The matter first came on before me on the 21st day of January, 2015 and there was before me on that occasion a long affidavit of objection of DR sworn on the 14th April, 2014, the replying affidavit of ER sworn on the 18th July, 2014, and the affidavit of Anthony O’Gorman solicitor sworn on the 2nd 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 30th August, 2013 that Mr R was suffering from “senile dementia + + +” 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 20th April 2015 and a supplemental affidavit of objection was sworn by DR on the 9th January, 2015 and there was also adduced on affidavit of the 19th 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
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:-
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 14. The application for registration in accordance with the statutory requirement was accompanied by a certificate of Dr. Gormely which states:
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 1st 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 “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. It seems that in the presence of Mr O’Gorman 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. 17. Mr O’Gorman concludes his affidavit evidence by saying that Mr R after this conversation executed the necessary documents “and was happy to do so”. 18. ER, the donee of the power confirmed the events in the nursing home on that day and the conversation with his sister D, as did NW in her affidavit. The medical evidence 20. The exhibits to Dr Doyle’s affidavits showed that he scored 23 out of 30 on a mini mental health test on the 30th August, 2013 and this score is explained as suggestive of a “moderate dementia”. Dr Doyle did say that “someone with this score is capable of understanding”, but with regard Mr R merely that he was “capable of basic understanding of matters at that time”. 21. Dr Doyle executed the statutory part of the instrument creating the power on the 6th November, 2013, five days after it was executed by the donor. The standard form provides as follows:
22. Dr Doyle’s second affidavit points to the fact that senile dementia is a medical diagnosis, and not a specific disease but rather
23. Dr Doyle points to the fact that his observation of Mr R suggested that he was displaying the characteristics of dementia including forgetfulness, a tendency to wander, confusion and agitation. He said however that Mr R at times presented with few symptoms and that he had “times of lucidity” during which he was “capable of acute understanding of issues including his health”. Chronology of Events
2) In February 2012 a Dr. O’Driscoll, a specialist in geriatric medicine, noted in a standard HSE assessment form that the donor had scored 23/30 in a mini mental state test (“MMS test”). This date is incorrectly given by Dr Doyle in his first affidavit of the 20th March, 2015 as arising from a test conducted on the 30th August, 2013. The result is consistent with what is described by Dr Doyle as “moderate” dementia. 3) A public health nurse Maureen Lawrence noted on the 2nd May, 2013 that the donor was at a high risk of wandering. 4) On the 13th June, 2013 Ms Lawrence noted that the donor could not retain information, that he was at a very high risk of wandering and he had been found on the road on a number of occasions in his dressing gown and in poor weather conditions. An observational test was carried out by Ms Lawrence called a Barthel Index Test, described as a test for assessing self care and mobility activities, in which the donor scored 13/20. Ms Lawrence noted that he attended a day care centre run by the Alzheimer’s Society and was in need of a “high level of supervision”. 5) Dr Doyle diagnosed Mr R with “senile dementia +++” on the 30th August, 2013,a diagnosis made from clinical observations. Dr. Doyle notes the he “was not at the worst stages of dementia” at the time. He was prescribed a specific drug for dementia, thought to treat some of the symptoms of Alzheimer’s disease although not believed to halt or reverse the process of cell damage that causes the disease. 6) On the 10th September, 2013 Dr Doyle found Mr R to be lucid and displaying no sign of confusion, forgetfulness or agitation and capable of understanding and discussing his health issues in a comprehensive manner 7) On the 19th September, 2013 Michael Kelly, a senior occupational therapist noted that the donor scored 19/30 in an MMS test and 0 on the orientation to time and recall test. The precise meaning of this result was not explained but it is a lower result than the one carried out a year and a half earlier. 8) On the last occasion that he was seen by Dr Doyle, the 8th October, 2013 Mr R displayed signs of confusion and agitation. 9) On the 22nd October, 2013 on medical advice the donor took up permanent residence in a nursing home. The evidence points to a serious deterioration at that stage which required his admission as a matter of urgency. 10) Ten days later on the 1st November, 2013 the instrument creating the EPA was executed. 11) On the 21st January, 2014 notice of intention to apply for registration of the EPA was lodged, and a doctor’s letter confirmed a lack of cognitive capacity in respect of all his affairs. Conclusion on evidence The purpose of certification 28. The purpose of the statutory certification is manifold, but primarily its purposes must be to protect the donor of a power of attorney, and if necessary to provide contemporary evidence of the state of mind of a person who executed the instrument. The statutory creation of an EPA was put in place after a long consultation process including a report by the Law Reform Commission, in the context of its review of Land Law and Conveyancing Law - LRC 31/1989, and the first and second schedules to the Enduring Powers of Attorney Regulations, S.I. 196 of 1996 contain the form of the instrument. As part of the execution of an EPA a solicitor is required to certify that the donor understood the effect of the execution and that the solicitor is satisfied that there is no reason to believe that the document is being executed by the donor as a result of fraud and undue pressure. A registered medical practitioner must also certify capacity. 29. I consider that the legislation did not envisage circumstances where a doctor would rely on the opinion of a solicitor with regard to capacity, especially so in the case of a person who was suffering from a progressive dementia condition, as was Mr R. While the legislation imposes no time limits on the execution of a certificate, and does not require the certificate to be contemporaneous, the fact that medical certification is mandated requires an independent medical assessment as to the capacity of the donor to execute the document, and the responsibility for the certification cannot depend on the opinion on another non-medical person. To consider otherwise would suggest that in a suitable case no medical evidence was in fact required. Best practice? 31. I consider that Mr O’Gorman did not follow the “best practice” guidelines published by the Law Society and turn now to the question of the extent to which guidance ought to be sought from these. The operation of the rules of “best practice” or a “golden rule” were considered by Briggs J. In re Key (deceased) [2010] EWHC 408 (Ch):-
33. Having regard to the fact that the condition as explained by Dr Doyle is a progressive condition, and notwithstanding that a person suffering from the condition is capable of periods of lucidity, establishing that a period of lucidity was in fact operative at the time of the execution of the instrument must be one which, from a medical point of view, requires contemporary or near contemporary examination. The matter could be stated to some extent in the negative, if a person is showing few or no signs of confusion, then it might be fair to say that a gap of five days between the execution of the instrument and the certification of a doctor, would not raise a doubt, but where the opposite is the case, and where signs of confusion are shown and, where, as here, the condition is progressive, and not one from which a person recovers or where the mental state of a suffer improves over time, the certificate ought to be based on an assessment of capacity at the time of execution and cannot be a matter to be extrapolated from the observations of a person without medical knowledge. 34. In conclusion, I consider that in the case of a power of attorney executed by a person who has fluctuating or deteriorating mental capacity simultaneous or near simultaneous medical assessment is desirable, and this is so because the fluctuating nature of the condition itself opens the possibility that the mental capacity of the donor be impaired. This is not to say that simultaneous legal and medical assessments are always required, and whether this is so will depend on the circumstances of the individual donor. 35. It is noteworthy in this case that neither the doctor nor the solicitor who certified capacity on the instrument executed by Mr. R adduced contemporaneous notes at the hearing. Dr. Doyle has suffered a fire at his surgery, but even allowing for this fact, he does not state in his affidavit that he did prepare contemporaneous notes, and it is clear from his evidence that he did not clinically examine Mr. R before preparing the certificate. At best he relied on a conversation with Mr. O’Gorman. Mr. O’Gorman has sworn an affidavit and did not exhibit any contemporaneous notes. I regard this less than satisfactory and I would expect at the very minimum a solicitor and a doctor who have a statutory obligation to certify capacity for the purposes of the creation of an EPA should record their findings and make these available if necessary to a court charged with determining the question of mental capacity in any further dispute 36. I consider that, while best practice or professional guidelines are useful tools, they can do no more than act as a marker and the question of capacity must be determined as a matter of fact in the circumstance of the individual case. Laffoy J. in Scally v. Rhatigan [2010] IEHC 475 that:-
37. Notwithstanding this it seems to me I must consider the question, not previously dealt with by any decision opened to me whether the test of capacity is a medical or legal test. 38. Counsel for the applicant argues that the test is a mixed test of law and fact and points me to the general approach of the court with regard to capacity to execute a testamentary document and suggests that some assistance can be gained from the case law. 39. Before I turn to the case law on capacity to execute a testamentary document I wish to briefly refer to the legal test of capacity as explained by the Supreme Court in In re Ward of Court (withholding medical treatment) No. 2 [1996] 2 I.R. 79. An adult is presumed to have capacity and whether a person has capacity to execute an instrument requires an understanding of the nature, purpose and effect of an instrument executed by him or her. For that purpose I adopt the detailed analysis of Laffoy J. in Fitzpatrick v. F.K. [2008] IEHC 104 that the true test is whether a person’s “cognitive ability has been impaired to the extent that he or she does not sufficiently understand the nature, purpose and effect” of a choice, in that case of life saving treatment proffered. Laffoy J. linked the question of capacity to the capacity to understand information, understand the consequences of an action, of a choice made and to be in a position to weigh information an alternative choices and likely outcomes. That characterisation is a useful tool to start the analysis. 40. Some assistance can also be obtained from the law on testamentary capacity and the classic statement of testamentary capacity is found in the old decision of Banks v. Goodfellow [1870] LR 5QB 549, where Cockburn C.J. considered the capacity to make a will and made the following statement, much quoted:-
42. More recently Laffoy J. in Scally v. Rhatigan had followed the test. The testator in that case had made a long and complex testamentary document. I adopt by analogy the test of capacity stated by Laffoy J. in that case as follows:-
Functional test of capacity 45. I accept however his general argument that capacity must be tested having regard to the function being undertaken, and at the time of the execution of the instrument. This is consistent with the test of capacity explained in Fitzpatrick v F.K. Thus, the court will as a broad range of questions in order to asses the capacity of a donor to execute an instrument creating an EPA. There can be circumstances where a person is at the time of the execution of an instrument incapable of managing his or her property and affairs if they are very complex, but capable of understanding the need or desirability to give authority to another person to so manage those affairs, and to choose that person. This is not to say that the creation of an EPA is a simple task, as some complexity is undoubtedly found in the range of the powers and duties imposed on an attorney after a power is registered, but I consider that there are probably many examples where a person understands and appreciates that he or she is suffering from a progressive dementia type condition likely to lead to circumstances where the management of financial affairs is beyond his or her capacity, and may even have come to a position where he or she is unable to actually manage or direct complex financial affairs, but is still in a position to understand and give instructions for the appointment of another person to act on his or her behalf. The cognitive capacity has to be at a level sufficient to understand the effect of giving decision-making authority to another. The effect of section 4(3)
(a) may so act in relation to himself or herself or in relation to any other person if the donor might be expected to provide for his or her or that person's needs respectively; and (b) may do whatever the donor might be expected to do to meet those needs.” Conclusion on the test of capacity Understanding the effect of the power: what is required? 51. The range of matters in respect of which the donee would have authority to act on his behalf. 52. That the power once registered could only be revoked by order of the court. 53. The limited power of the notice parties to object to decisions taken by the donee after registration. 54. That the authority of his chosen attorney will be to act on his behalf should he become mentally incapable. 55. That, subject to any limitations placed in the instrument itself, the donee of the power will be able to do anything with the donor’s property which the donor himself or herself could have done. 56. With this in mind it must be noted that the law as it presently stands does not involve an automatic supervision by the High Court of the exercise by the donee of an enduring power of his or her authority. There is for example no requirement that annual accounts be filed in the High Court. Furthermore as explained in A.A & Ors. v. F.F. [2015] IEHC 142 the donee of a power is not answerable to other family members in the performance of his or her functions. What was to be understood by Mr R? 58. Anthony O’Gorman his solicitor swore one affidavit in the application. He says that he attended at the nursing home and took instructions from Mr R and that he explained the “concept and meaning” of the EPA. The balance of para. 7 of his affidavit bears quoting in full:-
60. The best evidence I have of Mr R’s capacity to understand has to be the events that occurred in the nursing home on the day the instrument was executed by him. I have no medical evidence from that date, and, as I have already expressed, I am unhappy with the medical evidence as adduced by Dr Doyle for the reasons stated. I note in particular that Mr O’Gorman the solicitor does not exhibit any memorandum of his attendance on the donor on the date in question, and having regard to the importance of the document which was effected, the fact that the donor was in a nursing home and was placed there because of his inability to manage his day to day affairs, the fact that it ought to have been known to Mr O’Gorman that the donor was suffering from senile dementia and/or Alzheimer’s disease, and that his admission to the nursing home was mandated as a matter of urgency following a review by the HSE. I am concerned that Mr O’Gorman has not in his affidavit deposed to the nature of the explanation that he gave to Mr R, save to say that it was “for his benefit” so that his son would be “in a position to discharge his accounts”. The EPA as executed does far more than this, and it gives a general power to manage all of the financial and property affairs of the donor with no express limitations. I am not satisfied that Mr O’Gorman explained this to the donor with a sufficient degree of clarity to satisfy me that the explanation was complete. While it might broadly speaking be correct to say that an instrument creating an EPA is for the “benefit” of the donor, the instrument actually executed by Mr. R creates a power of far reaching effect. 61. ER, the proposed attorney in his affidavit sworn on the 18th July, 2014 says that he was present during the visit and that he knew that his father understood the contents of the instrument that he executed “by virtue of the relevant questions that he asked about the matter”. He does not identify these questions, or explain the elements of the authority that was proposed to be given to him. In his affidavit he placed particular emphasis on what he described as “the situation about the payments due to the nursing home” and I note that the theme of how these payments were to be met runs through the evidence. This is understandable having regard to the fact that while the donor had the benefit of the Fair Deal Scheme, some shortfall has been identified in the payments. ER at para. 13 of his affidavit makes the following point:-
62. I take the view having regard to this evidence that the purpose for which the power of attorney was proposed to be executed by Mr R, and the purpose which formed the basis of the explanation to him, was to deal with the balance of the costs due to the nursing home, and that the perceived urgency in having the EPA executed was to deal with this specific need. I am satisfied that this particular context was explained to Mr R on the day that he executed the instrument, but I am not satisfied on the evidence that the import of the EPA which gave a general power to the attorney over all of his financial affairs and property was explained to or understood by him. Conclusion 64. As the question is determinative I do not propose to consider the other ground of objection, that the donee of the power is not suitable to act as attorney. |