No good reason to transfer family home of elderly man without capacity to co-ownership with wife, judge rules – The Irish Times

A judge has refused to make an order to “gift” a family home from the sole ownership of an elderly man, who has no decision-making power, to the joint ownership of himself and his wife.

In a landmark judgment on the application of the Assisted Decision-Making (Capacity) Act, Judge John O’Connor said the man’s two adult children, as his decision-making representatives (DMRs), had indicated the transfer was for his benefit. without “any real supporting evidence.”

There was “insufficient clarity” for the court to decide that the transfer was the man’s will and preference; no indication of “any real danger” to his wife if she were not to receive a joint share at that time; and no “substantial” reasons for transfer.

Claims that co-ownership would mean that the property would automatically pass to the man’s wife on his death, thus avoiding potential delays in probate, were about ‘convenience’ and not a ‘valid’ reason for the transfer .

Arguing that government policy favors joint ownership spouses, he said policy is not law. If the Oireachtas had wanted to grant the right to transfer a family home into the joint names of spouses where the transferor is unable to do so, it would have done so in “clear and unambiguous” terms.

Noting that the man’s lawyer had said that his client could not instruct him and that he had no comments on the DMR application, the judge considered the duty of lawyers acting for a relevant person (RP) who does not have sufficient capacity has.

That duty is not just limited to obtaining instructions directly from the RP, he said.

Capacity may vary and even if instructions cannot be obtained, the lawyer should examine the application and/or advise the court as to whether the RP’s rights are protected. A “minimum starting point” is to be aware of potential conflicts of interest, he said.

In a Circuit Court proceeding under the law, the judge last July declared the man incapable of making decisions regarding his personal welfare, property and affairs, and appointed his two children as his DMRs.

They then sought court approval to transfer his sole ownership of the family home to the joint ownership of him and his wife. Several submissions argued that the law allows DMRs to dispose of a relevant person’s property by way of a donation.

In his judgment this week, Judge O’Connor said there would need to be “exceptional” circumstances before the court would consider it appropriate to “donate” the man’s assets rather than ensuring they are used for his own benefit and of those he was obliged to care for. .

The court was asked to make an “intrusive intervention” without the need for evidence at the time.

The man probably intended to make a will and not to effect a transfer “that did not benefit him” and that did not put his wife in a better position than she was now. The DMRs have the power to access and manage the husband’s finances to pay bills and expenses related to his wife’s care and comfort, he noted.

The court upholds the right of a person who is unable to retain as much control as possible over his property and affairs, he said. It was important to note that a DMR has been appointed to act as “agent” for the RP, with oversight of the Decision Support Service, in relation to the management of the property.

Patricia Rickard-Clarke, vice-chairman of Sage Advocacy, the national advocacy service for older people, welcomed the judgment, saying the findings regarding the donation of property and the duties of lawyers representing RPs “clarify and protect’. . The ruling meant that ‘obvious circumstances’ had to be shown for any interference with those rights, including property rights.