The High Court registered an enduring power of attorney for a donor identified only as F.B., rejecting her two objecting children’s challenge to the suitability of the two named attorneys, N.B. and J.B. The court later made directions governing the donor’s care and finances by consent and awarded the applicants six-sevenths of their costs.
In a judgment delivered on 6 May 2020, Mr Justice Richard Humphreys said the objectors had not met their burden of proving the attorneys unsuitable. The dispute centred on the sale of the donor’s shares to fund works at B. House, where she had a right to reside. The judge found it had not been established that the donor lacked capacity when she decided on the scheme, and said the decision therefore could not be treated as one made by the attorneys.
The judge accepted that some aspects of N.B.’s management of the donor’s finances were suboptimal, but said the errors did not reach the legal threshold for unsuitability. He also found that both objectors had acquiesced in the share-sale proposal: one had agreed to it, and the other knew of it in broad outline within weeks but did not object. The judge rejected significant parts of the respondents’ evidence. He said family hostility alone did not establish unsuitability in this case.
The court registered the power under section 10 of the Powers of Attorney Act 1996. It initially said it was minded to give directions under section 12(2), subject to hearing the parties. In a postscript dated 12 May, the judge recorded that the parties consented to directions requiring the donor to remain at S. Nursing Home except in a medical emergency, and requiring outstanding capital gains tax returns to be filed within 28 days.
The directions also require the donor’s income to be paid into her bank account for her living and care expenses and future legal liabilities. The attorneys must sell her FBD shares and pay the net proceeds into that account after specified tax and disposal costs. N.B. undertook to cover tax liabilities connected with the earlier Glanbia share disposal, as well as nursing-home fees and registered-carer costs from gross rent from B. House, with the balance remitted to the donor’s account.
The attorneys must not otherwise disperse the donor’s property, apart from specified living and care expenses, limited gifts and tax liabilities. They must provide the siblings with annual account statements; N.B. must also report annually on B. House rent and related care payments.
In a further order, the court awarded the applicants six-sevenths of their costs. It also made, by consent, an order restricting publication of information tending to identify the donor and her children.