Our resident solicitor Karen Walsh tackles this sensitive issue
Dear Karen, a younger woman has moved in with my father and I’m worried.
My father is in his late sixties and he has 70 acres and the farmhouse. It’s not great land and it has been rented on a lease to a neighbour for the past five years.
My mother died a few years ago and myself and my siblings, four of us in total, have all moved out of the family home over the years. About two years ago my father started going to social dances in a local town with a friend of his and he met a woman at one of these dances.
Over the past 12 months she has become more and more a feature of my father’s life and I discovered the last time I visited him that she has moved in with him and is living in the house for the past six months. I haven’t had a chance to talk to my father about this situation as she was there, but I am worried about it. To be frank, I'm concerned she's a gold digger.
I know my father has a will that leaves the farm and house to myself and my three siblings equally, but could this woman lay claim to part of it, if my father passed away?
The first advice I would give you is to not panic and remember that a rash reaction may make any issues worse.
This situation is more common than you might think, but the scenario raises a number of issues, which I will outline below and detail your options.
What rights does this lady gain from co-habiting with a man to whom she is not married?
Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 this lady currently doesn’t appear to have rights to your father’s property.
However, if they live together for 5 years or more, she may acquire rights to his property. At the end of the relationship, she would have to apply for a property adjustment order or for redress. A court would determine, based on a number of factors, the size of her interest.
Couples may effectively contract out of the terms of the 2010 Act. Agreements on financial matters between cohabitant partners may be regarded as valid, only if each party receives independent legal advice or waives the right to independent legal advice.
Such an agreement constitutes a contract and must be signed by each party. It may also include a provision that the redress scheme does not apply to them. A court may set aside or vary a cohabitants’ agreement in exceptional circumstances if its enforcement would cause serious injustice.
It seems likely that the Will your father executed (of which you are aware), is likely valid. However, if your father was to remarry, any earlier wills would be invalid under the Succession Act, 1965. When a parent dies leaving a valid Will, their legal spouse is generally entitled to 1/3 of the estate. When a parent dies without a Will, their legal spouse is generally entitled to 2/3 of the estate.
It is wise for people who are older, to consult their physician before executing a new Will or any important legal document. Such a medical report would allay concerns that the he or she didn’t have the mental capacity to make decisions.
What steps a family can take to protect elderly relatives?
An Enduring Power of Attorney is a document executed by a person (the donor) who is mentally capable and which is only intended to be brought into force if the donor becomes or is becoming mentally incapable. In this event the attorney(s) appointed by the donor can apply for the registration of the enduring power of attorney so that they may act on behalf of the donor. This allows people (often relatives) they trust to manage their assets when they can no longer do so. At the start of the process, a physician must report that the person is mentally sound. Other people are ‘Notice Parties’ and are notified of the creation of such a document as a protection. If the Donor is married, their spouse must be a notice party.
Often years can elapse between the creation of the document and its registration with the High Court. In the intervening period it is usually kept safe by the Solicitor. When the document is registered by the Attorneys, it is sent, with proofs, to the Wards of Courts Office in Dublin.
Taking control of somebody’s assets and health related decisions is a serious step and so requires care to prevent over reach. It is not an easy process and can take several months to complete. If family members believe their relative is no longer mentally capable, it is likely too late to put an Enduring Power of Attorney in place.
All of this advice is given without knowing the circumstances of your father’s partner. Obviously, your father would gain similar rights to any estate she might have.
It could well be argued that this lady provides a benefit to your family and should be welcomed. Her participation in his life may contributing to his good living condition.
The application process involves full financial disclosure and assessment.
Having looked at income and assets, the Financial Assessment will work out the contribution to care. The person will contribute:
Where assets include land and property, the 7.5% contribution based on such assets may be deferred and paid to Revenue after death. This is known as the Nursing Home Loan.
A principal residence will only be included in the financial assessment for the first 3 years of a person’s time in care. This is known as the 22.5pc or ‘three-year cap' (the cap is 15% for applications made before 25 July 2013). It means that they will pay a 7.5pc contribution based on the principal residence for a maximum of 3 years regardless of the length of time spent in nursing home care. If the elderly person chooses a private nursing facility, it is likely that their estate will owe the State a larger sum.
Karen Walsh, of Walsh & Partners, Solicitors, comes from a farming background and is a solicitor specialising in agricultural law, land law and renewable energy and is author of ‘Farming and the Law’ available from www.claruspress.ie. The firm also specialises in personal injuries, employment law and family law. She has offices in Dublin and Cork. For further information please contact 01-602000 or 021-4270200.
Disclaimer: While every care is taken to ensure accuracy of information contained in this article, Solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.
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