Two brothers who objected to two other siblings having control of the financial affairs of their mother who developed dementia are facing a substantial legal bill after losing a High Court case and an appeal.
The brothers objected to another brother and a sister, who lives abroad, registering an enduring power of attorney (EPA) over their mother’s affairs after she went to reside in a nursing home.
The mother executed the EPA in 2008 appointing the brother and sister should she become mentally incapacitated.
She continued to live independently in the family home which her late husband had bequeathed to her and to the son with the EPA.
In 2010, she showed signs of dementia and in 2012 suffered a stroke and went to live with the (EPA) son who lived nearby and his wife.
The mother had 12 years earlier transferred her interest in the family home to that same son. The son claimed she had at the time also offered to transfer to him her shares in a company which were later worth around €84,000.
In 2019, she went to live in a nursing home and as her mental condition deteriorated, the two children applied to register the EPA.
The other two brothers objected in High Court proceedings, arguing the relevant siblings were unfit to hold the EPA.
One of the objectors claimed the son with the EPA was unsuitable because he had allegedly deprived their mother of access to assets that should have been preserved for her welfare. Specifically, he said his brother had in 2016 sold his mother’s shares and used the money to turn her old home, now owned by that brother, into two apartments.
He objected to the sister having the EPA on grounds she was not resident in the State and too distant from the share transaction.
The other objecting brother complained he had not been consulted about moving their mother to a nursing home and asserted she did not and could not have authorised the share sale.
The brother with the EPA disputed the claims and said he encashed €59,000 worth of the shares which was spent on the apartments with some €38,000 of his own money. He said all income from the apartments was used to support his mother, including after she moved to the nursing home.
An attempt at mediation failed and the High Court last May rejected their objections and registered the EPA. The High Court also ordered the objectors to pay almost all (85 per cent) of the other two siblings’ legal costs.
The objectors appealed the costs order but the Court of Appeal (CoA) dismissed the appeal and confirmed the costs order.
Ms Justice Maire Whelan, on behalf of the three-judge CoA, said there was evidence before the High Court which, on balance, entitled the judge to conclude the contention that the objecting brothers should replace their brother and sister for EPA purposes was not reasonable.
The litigation was not conducted in a bona fide manner including that one of the objectors knew and acquiesced at the time of the share transaction and was well placed to know about the mother’s mental capacity about the sale, she said.
It also ought to have been obvious to that objector that his suggestion that he would take care of his mother rather than leave her in a nursing home was substantially unrealistic, the judge said. The court did not accept the other objector’s claim of having no knowledge of the share transaction at the time.
The stance of the two objectors escalated the proceedings into a full-blown hearing lasting three days, she said. There were also threats to remove the mother from the nursing home which necessitated a successful application from the brother and sister for an injunction to prevent it. This further added to the costs.
Ordering the appellants to pay half of the costs of the appeal, the judge said she was doing so for reasons including the appeal was conducted with expedition and had “resulted in clarity as to the reasonable expectation of notice parties and attorneys engaged in inquisitorial proceedings and applications concerning a person who is or may be becoming mentally incapable”.
