Power of Attorney

Conology

Hi

A friend of mine is in a long term relationship ( more than 20 years).

His partner owns the house they are living in.

She is now suffering from Dementia & has not signed a "Power of Attorney"

She has children.

There is the likelihood that she will need to go into a Home for proper care in due course.

Do the children have the right to place her in the Home or does He ( the partner) have the right to make that decision or not.

Who has the "Legal" authority in this case.?

What are your thoughts please ?

Thank you

Peregrinus

Are your friend and his partner married?

Conology

https://www.boards.ie/discussion/comment/121204758#Comment_121204758

NO

Peregrinus

OK. :

Legally, speaking, so far as inheritance, goes, the partner's next of kin are her children.

This doesn't mean that, while the partner is alive but unable to make informed decisions about medical treatment, residence, etc, her children get to do it for her. Unless people take court proceedings to have decisions like this made for an incapacitated person (which is rare) there is no clear statement in Irish law about who has the right to make decisions.

But the fact that the children are legal next of kin in the event of her death does give them a certain weight in the matter. Also, they have known her for longer and are more closely related to her. The medics, etc, greatly prefer that all the family (including the partner) discuss matters and reach a consensus decision or, at least, one they can all assent to, but if it comes down to a straight confrontation over different and inconsistent decisions made by the children and by the partner, the children are more likely to prevail.

So, your friend should try to avoid things coming to that pass. If he's on good terms with the children, and if they share a common priority of doing what is best for the partner, things may work out quite well. But the focus should definitely not be on him opposing their decisions and trying to impose his own, but on him participating in and influencing their decisions in the direction that he things best.

Do you know if the partner has made a will and, if so, whether your friend expects to inherit the house he lives in, if he survives the partner?

Conology

https://www.boards.ie/discussion/comment/121212290#Comment_121212290

Yes - A will is made giving him the house in the event of her death, but what happens if ??? she has to be placed in a Carers Home and lets say he objects to this ??

Mrs OBumble

https://www.boards.ie/discussion/comment/121217609#Comment_121217609

He can go to court and try to prove it's not in her best interests. Good luck with that one if a doctor has recommended it.

Has he plans for how he will pay the CAT if she dies before Fair Deal has swallowed the house?

Peregrinus

As long as she stays at home, he'll be her primary carer, and the largest burden will be born by him. I think the question of a move to a care home only arises if he decides that he cannot care for her adequately (in which case he won't object to the move) or if she develops a medical condition needing treatment that cannot be delivered at home (again, he presumably won't object) or if her family decide he is unable to care for her adequately (perhaps due to his own growing frailty; presumably, he's not a young man himself).

The opening position is that she's at home and it will be difficult to remove her against her partner's opposition. But the family could go to court and seek an order, based on an argument that her best interests require the move. (Or, your friend could go to court and seek the order he wants, based again on a best interests argument.) The court ultimately would decide the question, but only after a lot of money had been spent on lawyers.

The problem will be compounded by the fact that residential care must be paid for, and this is mostly likely to be done by borrowing against her house. (The house can't easily be sold to pay for her care, because your friend will be living in it.) The borrowing will have to be repaid on her death and, if her estate doesn't have other assets than can repay the borrowings, the house may have to be sold at that point, in which case it wouldn't come to your friend. This puts your friend in a difficult position as regards the decision to move to care in the first place because the children could argue that, if your friend opposes the move to a care home, he is not really doing this based on her best interests but based on a desire to protect his expected inheritance.