Farm Ireland

Saturday 15 December 2018

Legal advice: I don't want to put my mother in a nursing home

Our solicitor tackles this sensitive issue

Your mother should also give consideration to creating an Enduring Power of Attorney, otherwise known as an EPA. 
Your mother should also give consideration to creating an Enduring Power of Attorney, otherwise known as an EPA. 

Dear Karen,

I don’t want to put my mother in a nursing home.  My mother, who is in her 70s, fell and broke her hip last October and it’s brought some things to a head at home. I’m a single woman in my 40s, with a good job, own my house and get on very well with my mother and brother. Our father passed away a number of years ago and my brother took over the farm from a young age.

He is married and his wife has a part-time job and they have two children, who all live in the farmhouse. When my father died my mother didn’t want to leave her house, so she paid for and built a granny flat by converting part of the downstairs house into her own space.

When she broke her hip last year, I had to take time off work to take her to hospital and physio appointments afterwards and ensure she had everything she needed. I offered for her to move into my house as it’s in the local town, but it’s a two storey and would have needed to covert a room downstairs into a bedroom although that would have been ok.

My sister in law was quite affronted when I suggested they could do more – such as take her to mass on Sunday – but they said they couldn’t – there was too much farming to be done and they would need to get a minder for the children! In the end it was easier to do it myself.

I’ve no doubt they do loads for her when I’m not there, but from the outside it doesn’t look like that and she seems very hesitant to ask them to do things. She calls me to bring her home messages from town, or to take her to town on the weekends, or to take her visiting her relations and friends.

Since her hip accident, she has needed extra help with everyday chores and I recently called to the house one evening to find she was still in her bedclothes.

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Also, the knock took a lot out of her and she seems to be becoming more ‘scattered’ – forgetting that I brought her things yesterday; not remembering that she has two grandchildren and asking after old neighbours who passed away years ago.

But I’m now wondering what to do? My brother and his wife don’t seem to want to be anymore hands on and I don’t have the time, unless I give up work or go part time, which I’m willing to do. But I’m concerned about the cost.

The main farmhouse is still in her name and I know she has some savings but I’m not sure how far they would stretch as nursing homes seem incredibly expensive.

Do we have to pay for all the home help or could the house be sold if she had to go into a nursing home?

Dear Reader,

This is a difficult situation for everyone. The first and most important matter that needs to be addressed is your mother’s health and you should arrange for her to be seen by her medical practitioner. You say she seems forgetful and confused and you will need to consider that it could be the early signs of dementia.

Depending on what the doctor says it would be important at this stage that your mother ensures her will is up to date and accurately reflects her wishes or if she has not made one to put one in place. This may all seem like rather morbid advice, however, it is always important to take care of these things in a timely manner to prevent difficulties down the line.

Your mother should also give consideration to creating an Enduring Power of Attorney, otherwise known as an EPA.   

An EPA gives a person chosen by your mother legal authority to make decisions on her behalf about her financial affairs, property and welfare, should she lose the mental capacity to do so. It is a legal document which only takes effect in the event that the person becomes mentally incapacitated.

The person creating the EPA is known as the Donor, and in the event of him or her becoming mentally incapacitated, the power to deal with the Donor’s money and assets transfer to the Attorney. The Attorney can be anyone of the Donor’s choosing, be it family or friend.

An EPA is a very important and helpful document to have in place. It is crucial, however, that it is created before a person starts to deteriorate mentally as if you wish to create an EPA you must be of sound mind and have mental capacity. In your case, it would be wise to look at creating an EPA to give you and your mother peace of mind for the future.

The home help service provides support to people in the community who need help with day-to-day tasks because of illness or disability. The service assists people to remain in their own home and to avoid going in to long-term care. The Health Service Executive (HSE) either provides the home help service directly or contracts non-profit or private providers to supply the service on its behalf.

There is no means test for HSE home care services and people who receive these services do not have to pay for them. The home help service is usually for a set number of hours of assistance each day or each week.

In relation to the nursing home I would advise you to consider the relief available with the Fair Deals Scheme. This will involve you making an application for a Care Needs Assessment. There will then be a financial assessment which takes account of income and assets.

If you are an eligible applicant then you must provide 80pc of your assessed income and 7.5pc of your assessed assets each year. There is also a three-year cap on payments.

This means that in respect of the principal private residence, the maximum contribution that can apply is 7.5pc of the value of the residence for the first three years of care. You say that your mother owns the farmhouse and has money in a bank account. You are not clear on whether or not the farm has been transferred. I presume it has.

Under the Nursing Home Support Scheme Act 2009, assets which have been transferred within a five-year period before the application is made for State support or ancillary State support will be considered for the purpose of calculating the applicant’s means. This means that the farm would’ve had to have been transferred to your brother over five years ago in order that it is not included in the assessment of your assets.

I would also urge you to talk to your brother and sister in law. Clear and effective communication with no blame attached goes a long way. This way you could determine who is doing what for your mother and the options that you need to consider for her future.  

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 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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