No good reason to transfer family home of elderly man lacking capacity to joint ownership with wife, judge rules

A judge has refused to make an order to “gift” a family home from the sole ownership of an elderly man, who lacks decision-making capacity, into the joint ownership of himself and his wife.

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

There was “insufficient clarity” for the court to decide the transfer was the man’s will and preference; no indication of “any real jeopardy” to his wife if she did not get a joint share at this time; and no “substantive” reasons for transfer.

Submissions that joint ownership would mean the property would automatically pass to the man’s wife on his death, and thus avoid possible delays with probate, were about “convenience” and not a “valid” reason for the transfer.

Addressing arguments that public policy favours spouses having joint ownership, he said policy is not legislation. If the Oireachtas had intended to confer a right to transfer a family home into joint names of spouses where the transferor lacks capacity, it would have done so in “clear and unambiguous” terms.

Noting the man’s lawyer had said, because his client could not instruct him, he had no submissions on the DMRs application, the judge considered the duty of lawyers acting for a relevant person (RP) lacking capacity.

That duty is not confined solely to obtaining instructions directly from the RP, he said.

Capacity can vary and, even when instructions cannot be obtained, the lawyer should investigate the application and/or advise the court if the rights of the RP are being protected. A “minimum starting point” is to be aware of possible conflicts of interest, he said.

In Circuit Court proceedings under the Act, the judge last July declared the man lacked capacity to make decisions relating to his personal welfare, property and affairs, and appointed his two children as his DMRs.

They subsequently sought court approval to have his sole ownership of the family home transferred into joint ownership of him and his wife. Among several submissions, it was argued the Act permits DMRs to dispose of a relevant person’s property by way of gift.

In his judgment this week, Judge O’Connor said “exceptional” circumstances would be required for the court to regard it as appropriate to “gift” the man’s assets rather than ensuring those are used to benefit himself and those he was obliged to provide for.

The court was asked to make an “intrusive intervention” with no evidence that was required at this time.

The man had presumably intended to make a will and not create a transfer “of no benefit to him” and which did not place his wife in any better position than she was now. The DMRs have power to access and manage the man’s finances to pay bills and costs related to the care and comfort of his wife, he noted.

The court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs, he said. It was important to note a DMR is appointed to act as an “agent” for the RP, with oversight of the Decision Support Service, concerning management of the property.

Welcoming the judgment, Patricia Rickard-Clarke, vice-chair of Sage Advocacy, the national advocacy service for older people, said the findings relating to gifting of property and the duties of lawyers representing RPs “clarify and protect the rights of very vulnerable people”. The judgment meant “clear circumstances” had to be shown for any interference with those rights, including property rights.