Saturday 10 December 2016

Court rules that woman's decision to sell mum's house to pay for nursing home costs was correct

Tim Healy

Published 11/04/2016 | 16:38

The High Court, Dublin
The High Court, Dublin

A WOMAN'S decision to sell her mother's home to pay towards nursing home costs was correct despite a son's objections, the High Court ruled.

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The son had objected to his sister being registered in court as having power of attorney over the affairs of their mother who is in her 80s and has severe cognitive impairment.

He claimed the sister was unsuitable largely because she put their mother's home in Dublin on the market a few months after she went into a nursing home following an illness for which she required hospitalisation.

As a result, the house was withdrawn and a hearing took place before the president of the High Court, Mr Justice Peter Kelly over whether the power of attorney should be registered by the court.

The judge rejected the brother's objection and said the decision to sell the house was sensible and reasonable.

The power of attorney was executed in July 2012 after the mother's doctor assessed her as having an "emerging dementia process", the court heard. 

She has three children, the daughter, the brother who objected, and another brother who supported his sister.

Mr Justice Kelly said the sister and the objector brother, the youngest in the family, are not on good terms and have not spoken to each other for eight years.

The judge was satisfied there was a close and warm relationship between the mother and daughter who had looked after her very well from 2006 onwards.  The objector brother accepted she looked after her very well, the judge said.

The mother had a stroke in 2006.  She did not have a bank account, carried substantial amounts of money on her and was the victim of a robbery on one occasion.

Following her stroke, the mother agreed to set up a joint account with her daughter so her financial affairs could be looked after.

Mr Justice Kelly was satisfied the power of attorney created in 2012 was executed in an entirely  regular way and that the mother understood what was happening.

There was a "reasonably successful" attempt at reconciliation in 2014 when the daughter invited the brother to dinner but "subsequent events have reanimated the rift", he said.

The judge was satisfied there was no desire to move the mother into a nursing home by the daughter but it became necessary when she was no longer able to look herself in her home, particularly as none of the children now live in Dublin.

The brother said he was aware their mother did not want the family home sold and that he would be quite happy to look after her in his own home in Kildare.

The judge said the daughter took steps to sell the house because there was a shortfall of €1,000 per month towards her nursing home which was costing a total of €4,000 per month.  There were also outgoings for the now vacant house, including insurance and property tax, and it had also been broken into.

Around €2,000 of the mother's monthly care was being funded through the government's Fair Deal Scheme for nursing homes and some more from her pension.

Most of the value of the house is taken into account when assessing a person for Fair Deal and the small amount which is (€36,000) only lasts for three years after which the entire asset is assessed.

The sister, who was sad at having to sell the house, took the view that if all of the sale proceeds went to her mother's care then "so be it" although the brother believed it could be rented out.

The judge said there were tax and tenant's rights involved in renting and in his view the decision to sell was sensible and perfectly reasonable.

The fact that the objector would prefer it to be let did not make the sister's decision irrational and "most certainly does not render her unsuitable to act as attorney".

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