Our solicitor tackles this sensitive subject
My father is in his 80s and has been farming full time since he was 16. He loves farming and since my mother died a number of years ago I honestly think it’s all that keeps him going.
Unfortunately of late, age has been catching up on him. I and the rest of the family are worried. If I’m honest I don’t think he is mentally or physically up to the work he is doing. All us children work away from home and haven’t been involved with the farm.
He never encouraged us to be on the farm. He’s always been able to manage on his own until recently. He’s an extremely stubborn man and wouldn’t take our help any way.
On a recent visit home my sister found the place in awful state. There were dead animals in the yard and the field and there didn’t appear to be enough feed on the farm for the stock and that isn’t the biggest problem. The other day I got a call from a neighbour saying he nearly mowed down his wife and kids with the tractor recently.
He said he didn’t see them on the road at all. I’m afraid he is going to hurt himself or someone else. He’s extremely stubborn and has no intention of giving up or even slowing down. What can we do?
This is obviously an extremely difficult and stressful situation and you are clearly very worried about your father. The first thing that you need to do is try to talk with him.
You should arrange a family meeting and organise for all of your siblings to call to him together and advise him that you are very concerned and worried about him and that you only have his best interests at heart.
You should consider encouraging him to be assessed by a doctor and if a doctor certifies that he is of sound mind he should consider creating an enduring power of attorney. An enduring power of attorney (EPA) is a legal document which can only take 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 your father becoming incapacitated the power to deal with his money and assets transfer to his nominated attorney but only becomes operative if your father becomes incapable of looking after his affairs and it continues in force until death.
An EPA can only be created when an individual is of good mental health and is at that time of sound mind. In the event of an individual becoming mentally incapable without having this document in place, their family would not be able to deal with their financial affairs or property until the death of the individual or upon them being made a ward of court. An application to be made a ward of court is an extremely costly and time consuming process and could significantly erode any assets involved.
Executing an EPA can represent enormous value for money compared with the cost of making someone a ward of court. An EPA is a powerful and important legal document and one should seek advice from a legal advisor with experience of preparing them.
The process of creating an enduring power of attorney is a relatively straight forward one and is a highly valuable device in often very difficult circumstances. If a doctor is not in a position to certify that he is of sound mind then you can make an application to the High Court to have him made a Ward of Court.
You mentioned that on a recent visit home your sister found the farm in an awful state. This is very worrying obviously and you mentioned that there were dead animals in the yard and field and that there didn’t appear to be enough feed on the farm for the stock.
This could have very serious consequences for your father as there are very strict laws in relation to animal welfare and health. Your father could face criminal prosecution for breach of the legislation. The Animal Health and Welfare Act 2013 include provision for increased powers for authorised officers to investigate complaints of animal cruelty, and impose strict penalties. In addition the court has power to order that the person be disqualified from owning an animal for their lifetime.
Also you mention that you received a call from a neighbour saying that your father nearly mowed down his wife and kids with the tractor recently. This is most serious matter. Perhaps your father should see an optician to check his eyesight as it sounds like he should not be driving at all as he appears to be a danger to himself and others on the road.
If he is starting to suffer with the early stage of dementia he should not be driving at all. Again if he was involved in accident that caused injury or death to someone he could face a criminal prosecution and also a civil claim for damages.
You need to advise him that he needs to consider thinking of a succession plan. Perhaps he could rent the land? Perhaps he could sell the land if you and your siblings are not interested in farming. He also should ensure that he has made a valid up to date will.
The best thing to do is speak with your father and relay your concerns and worries and fears to him. Obviously, you cannot make him do anything but approach the conversation from the point of view that you are genuinely care for him and want to make sure he is safe and that he needs to consider a succession plan.
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. T
he 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. Email: firstname.lastname@example.org
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.
Q I have patiently waited for my BPS payment and my ANC since the end of September. Despite ringing my local department office, who can't tell me why my payments are delayed, I am none the wiser as to why or what I can do about my situation. Although I work off-farm, financially my wife and I depend on these payments. What can we do?