A daughter of an elderly woman with Alzheimer’s disease cannot represent her mother’s estate in a legal dispute over €115,000 arrears of nursing home fees under the Fair Deal scheme due to conflict of interest concerns, the president of the High Court has ruled.
The mother has been a ward of court since 2017 and the HSE claims it has not received acceptable proposals for payment of the arrears from the daughter and another male relative, a lawyer, in their capacity as joint committee of the mother’s estate.
The HSE is concerned that the daughter and her husband are living rent free in the mother’s core asset, a €475,000 property bought in the mother’s name in 2016 under an ordinary power of attorney (POA) given by her to the daughter in 2014. The bulk of the funds used to buy that came from the sale of the mother’s home with the daughter contributing about 10 per cent.
The HSE is concerned that the POA was not effective because the mother lacked capacity at the time of the purchase.
Paul Brady BL, for the HSE, told Mr Justice Peter Kelly this week that the mother has been in the nursing home since 2015, has never lived in the €475,000 property and is unlikely to ever do so. He said it is in the mother’s interest to sell the property, use the proceeds to clear the arrears and have a “significant” cash fund.
‘Personal interest’
The daughter and her husband - also a lawyer and acting for the joint committee - have a “direct personal interest” in not selling the property, he argued.
The daughter disputes any conflict of interest and her counsel argued it was in her mother’s interest to have the property in her name as that assisted claims she was entitled to a cap on the nursing home fees.
The daughter also disputes the extent of the arrears, arguing they should be €30,000 less. She has proposed payments of €3,000 monthly or, alternatively, to permit the HSE take out a charge on the €475,000 property and collect the nursing home arrears after her mother’s death. The other committee member, the male relative, “is not demurring in any way” from that position, the court was told.
Against that background, Mr Justice Kelly granted the HSE’s application to have Patricia Hickey, general solicitor for wards of court, replace the daughter and relative as joint committee of the mother’s estate for the forthcoming hearing of the arrears dispute.
The judge stressed he was only dealing at this stage with the application to replace, in the context of the dispute over arrears and pending further order, the joint committee of the estate and making no findings on the legal issues.
He said the issues suggest there “may well be” a conflictt of interest between the mother and the joint committee concerning the arrears and he considered it was very much in the mother’s interest that the general solicitor act for her in the arrears dispute.
Upset
He said a medical assessment in spring 2015 stated the mother had Alzheimer’s and hospital notes also recorded the mother’s diagnosis being discussed with the daughter and other family members during which the family were described as very upset at being told it was considered the mother had “months” to live.
There was an “important” July 2015 letter from the daughter to the nursing home support office stating, if a power of attorney was insufficient for the office’s purposes, she would have no option but to proceed as a care representative and stating her mother, given her health, could not appoint an enduring power of attorney.
Within months of that letter, the mother’s home was sold and the proceeds used to buy the €475,000 property, he said. The authority to give effect to the purchase was the POA and that immediately raised issues about the entitlement of the daughter, as attorney, to both sell her mother’s principal private residence and purchase the other property given the mother’s medical condition as set out, he said.
In his view, the law concerning what happens when the donor of an ordinary POA loses capacity is “clear” — loss of capacity brings about “termination” of the power of attorney.
A “question mark” thus immediately arises especially concerning the 2016 property purchase under the POA given the report months earlier concerning the mother’s medical condition.
There may well be a “complete answer” to all these issues but they require investigation and the appropriate person to do that is the general solicitor, he said. There is no complaint concerning the daughter and male relative’s representing the woman’s person and they will remain in that role, he noted.
