The High Court has ruled that an enduring power of attorney did not authorise a son to make personal care decisions for his father, including deciding where he should live.
In a judgment delivered on 23 February 2024, Mr Justice Conleth Bradley interpreted an instrument executed on 27 May 2016. The court determined under section 12(2)(a) of the Powers of Attorney Act 1996 that the instrument gave the son general authority over his father’s property and affairs, subject to a direction concerning care at home. It did not grant authority to make personal care decisions.
The father, identified as AA in the judgment, was just over 90. His son, CC, was the attorney and respondent; his daughter, BB, brought the application. The father had lived in a nursing home since around October 2020. Both siblings agreed that he wished to return home and that this should be accommodated if possible, practical and safe, following an assessment of his care needs. The judgment said he did not wish to undergo an assessment and his GP had declined to refer him, considering that decision should be respected.
The 2016 instrument said the father wished to remain at home as long as possible. If he became unable to live independently and manage his affairs, it directed the attorney “in the first instance” to arrange care at home by suitably qualified people. It also said the daughter should be consulted about the father’s wishes, feelings and best interests.
Justice Bradley found that the home-care direction qualified the attorney’s general authority over property and affairs. It did not specify personal care decisions such as where the father should live or with whom. He said the instrument assumed the father would remain at home, either independently or with assistance; “in the first instance” could not be interpreted as including a move to full-time nursing home care. The consultation wording did not change that interpretation.
Because the instrument did not grant authority over personal care decisions, the court said it did not need to decide the siblings’ claims and counterclaims about whether consultation had taken place. It also found that the possibility of future overlap with the Circuit Court’s jurisdiction under the Assisted Decision-Making (Capacity) Act 2015 did not prevent it from deciding the instrument’s meaning.
The judge proposed an order reflecting that determination. He listed the matter for 10:15 on 29 February 2024 to hear the parties on ancillary and consequential matters. The judgment did not decide whether the father would return home or resolve those further matters.