The Court of Appeal has dismissed a daughter’s appeal against a High Court decision that her 92-year-old father should remain in a nursing home, where he was cared for in a specialist dementia unit. The court said a judge reviewing a personal care decision made under a registered enduring power of attorney (EPA) does not decide the matter afresh. The decision can be overturned only if it is manifestly not in the donor’s best interests and so irrational that no reasonable attorney could have made it.
The donor’s two daughters, identified in the judgment as B.W. and M.A., were appointed jointly as attorneys under an EPA he made in 2014. After his wife died in 2017 and he developed severe advanced dementia, they arranged care at his home. He was moved to a nursing home in March 2018 and, in May, to a home with a specialist dementia unit in the west of Ireland. The judgment says his other daughter, the appellant, and other family members were not told of the first move until after it happened. The circumstances of the move and later restrictions on visits were disputed.
The appellant asked the High Court to direct her father’s return home or, alternatively, to arrange an assessment by a geriatrician. The High Court appointed an independent medical visitor, who issued three reports supporting the care decision. The High Court declined to order a return home. The Court of Appeal noted that the appellant did not present medical evidence contradicting the medical visitor’s assessment.
In its ruling, the appeal court said an interested party challenging an attorney’s personal care decision must first provide evidence giving the court reason to begin an inquiry. If that threshold is met, the court reviews whether the attorney’s decision was reasonable; it does not substitute its own preferred decision. The court said attorneys must have regard to the donor’s wishes, participation and other statutory factors, but those considerations do not dictate the outcome in every case.
The appeal court found that the High Court had applied the proper approach. It also said the most recent independent evidence before that court supported the donor remaining in the nursing home, and that the appellant’s care plan and views did not provide independent evidence that the placement was unreasonable. The appeal was dismissed.
The court proposed that the appellant pay the respondents’ appeal costs, but did not make that order immediately. It invited written submissions from the appellant within 14 days on why the usual costs rule should not apply, with a further 14 days for the respondents to reply. The court said it would consider those submissions and give a reasoned decision later.