Court refused application to transfer property to joint names where transferor lacks capacity under ADMCA.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF CITY OF DUBLIN

Record Number: 2024.DUBL.ADMC/0000165

Neutral Citation: [2024] IECC 16

IN THE MATTER OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015 AND IN THE MATTER OF

AB

CAPACITY APPLICATION

PART 5 OF THE ASSISTED DECISION-MAKING (CAPACITY) ACT 2015

Application of CD and EW Judgement of His Honour Judge John O’Connor on the 9th day of October 2024

1. Introduction

1.1 In July 2024 I made an order declaring that that AB the relevant person (“RP”) and the subject of the application lacked capacity, even if the assistance of a suitable person as a co-decision-maker were made available to him to make various decisions specified in the declaration relating to his personal welfare or property and affairs, under s.37(1)(b) of the Assisted Decision-Making (Capacity) Act 2015 as amended (“ADMCA”).

1.2 I appointed the RP’s children CD and EW the decision-making representatives (“the DMRs”) in relation to the RP’s personal welfare or property and affairs matters specified in the Court declaration on the 12 July 2024.

1.3 An application has been made by the DMRs to approve a transfer of the RP’s Family Home (“the property”) into the joint names of the RP and his wife.

2. Applicants’ Submissions

2.1 It was submitted by Counsel for the Applicants that if the property is transferred into the joint names of the RP and his spouse, the property will pass on the death of the RP to his spouse automatically, without the need to take out a grant of probate.

2.2 It was specifically not submitted that the Court would make a statutory Will for the RP nor amend RP’s Will, which in fact the Court could not do but rather, that a deed of transfer of ownership of the Family Home would be executed as soon as possible after the Court would permit, and the transfer would then take place to the effect that the RP and his wife would be registered as joint owners of the Family Home. Therefore, it was submitted that on the death of the first spouse, the second spouse would automatically succeed as sole owner of the Family Home.

3. Will and Preference of the RP

3.1 The Applicants submitted that their evidence before the Court was in the form of statements from the Applicants that the Relevant Person’s past will and preference was to transfer the property, but he never managed to effect same before there was a declaration that he lacked capacity. The evidence of the Applicants was not given under oath in Court. This submission was not interrogated by the RP’s legal representative. A report from an independent professional advocate was also submitted independently to the Court.

3.2 It was submitted to the Court that Counsel was informed by CD, one of the Applicants, that the RP’s last Will provides that the property is bequeathed to his spouse on the death of the RP.

4. Gifts of Property are Permitted by the ADMCA

4.1 The Applicants submitted that it was not proposed that the RP will receive any financial consideration for the proposed transfer, and it would accordingly amount to “a gift”.

4.2 It was submitted by the Applicants that the Assisted Decision-Making (Capacity) Act 2015 as amended, permits DMRs to dispose of the RP’s property by way of gift.

4.3 Section 2 of the ADMCA defines decisions relating to “property and affairs”, as including “the sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property” (emphasis).

4.4 Section 43(1) of the ADMCA provides that “A decision-making representative may not dispose of the property of the relevant person by way of gift unless specific provision to that effect is made by the Court in the decision-making representation order.”

4.5 Section 43(6) provides that “A decision-making representation order may provide for the giving of such security by the decision-making representative to the Court as the Court considers appropriate in relation to the proper performance of the functions of such decisionmaking representative.

4.6 The Applicant’s Counsel submitted that the Court is mandatorily obliged to give effect to the s.8 Guiding Principles and in this regard further submitted in respect of s.8 of the ADMCA the following subsections [ emphasis by the Applicant’s Counsel ]

“(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person.

(6) An intervention in respect of a relevant person shall—

(a) be made in a manner that minimises—

(i) the restriction of the relevant person’s rights, and

(ii) the restriction of the relevant person’s freedom of action,

(b) have due regard to the need to respect the right of the relevant person to dignity, bodily integrity, privacy, autonomy, and control over his or her financial affairs and property,

(c) be proportionate to the significance and urgency of the matter the subject of the intervention, and

(d) be as limited in duration in so far as is practicable after taking into account the particular circumstances of the matter the subject of the intervention.

(7) The intervener, in making an intervention in respect of a relevant person, shall—

(a) permit, encourage and facilitate, in so far as is practicable, the relevant person to participate, or to improve his or her ability to participate, as fully as possible, in the intervention,

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable,

(d) unless the intervener reasonably considers that it is not appropriate or practicable to do so, consider the views of—

(i) any person named by the relevant person as a person to be consulted on the matter concerned or any similar matter,

(ii) any decision-making assistant, co-decision-maker,

decision-making representative, attorney or attorney under the Act of 1996 for the relevant person,

…

(iv) a designated healthcare representative within the meaning of Part 8 for the relevant person, where the intervention relates to treatment and an advance healthcare directive within the meaning of Part 8 is applicable,

(e) act at all times in good faith and for the benefit of the relevant person, and

(f) consider all other circumstances of which he or she is aware and which it would be reasonable to regard as relevant.

(8) The intervener, in making an intervention in respect of a relevant person, may consider the views of—

(a) any person engaged in caring for the relevant person,

(b) any person who has a bona fide interest in the welfare of the relevant person, or

(c) healthcare professionals.” (emphasis added)

4.7 Counsel also submitted that there does not appear to be any principled reason, by reference to s.8, for the Court to not approve the proposed transfer and they suggested that the proposed transfer is in accordance with and vindicates said principles.

4.8 The Applicants also submitted that the Court is mandated to give effect to the RP’s will and preference to transfer the property into joint ownership with his spouse and in this regard referred to the following portions of s.8 of the ADMCA and case law as follows;

(i) Section 8(7)(b) mandatorily obliges (“shall”) the Court “to give effect, in so far as is practicable, to the past and present will and preferences of the relevant person.”

Therefore, the only occasion where the Court is legally entitled to not give effect to the person’s will and preference, is where the will and preference of the Relevant Person is not “practicable”.

(ii) The meaning of “practicable” in section 8(7)(b) is yet to receive consideration in any written judgment, but its meaning has been considered in other contexts, and the jurisprudence provides that it calls for “the carrying out of the object in so far as it is reasonably practical to achieve it having regard to such difficulties as exist and to which regard may properly be had” (O’Donovan v. Attorney General [1961] IR 114).

(iii) It cannot be said that the proposed transfer is not practicable, as it is capable of being carried out without any unreasonable difficulties, or any foreseeable difficulties at all, subject to the Court’s approval.

(iv) Accordingly, the Court, as an intervener, could be considered obliged to approve the proposed transfer, subject to it being satisfied that same is the Relevant Person’s will and preference, and not in conflict with other guiding principles.

4.9 The Applicant’s Counsel submitted that approving transfer into joint ownership is an action in good faith and for the benefit of the RP and in this regard suggested as follows:

(i) The other relevant mandatory principle contained in section 8(7), is that the intervener shall “(e) act at all times in good faith and for the benefit of the relevant person”.

(ii) There would be no prejudice accruing to the Relevant Person by transferring his property into a joint tenancy ownership with his spouse. He retains full ownership of the property, but shared with his spouse. The transfer would achieve the benefit of giving effect to his will and preference.

(iii) Moreover, as a matter of public policy, the joint ownership of the Family Home between spouses is recognised as societal good, which is encouraged by the State through various measures. For example, it was submitted that the Oireachtas, in enacting section 14 of the Family Home Protection Act 1976 provided that:-

“no … land registration fee, Registry of Deeds fee or Court fee shall be payable on any transaction creating a joint tenancy between spouses in respect of a Family Home where the home was immediately prior to such transaction owned by either spouse or by both spouses otherwise than as joint tenants.”

(iv) Professor Wylie notes that this provision is designed to encourage the spouses to put the Family Home in their joint names (J.C.W. Wylie, Irish Conveyancing Statutes (Bloomsbury Professional 1999)). Similarly, section

114 of the Finance Act 1990 exempts stamp duty of transfers of any property from one spouse to another spouse of the same marriage.

(v) Such provisions serve to vindicate the special protection of marriage in Article 41.3.1° of the Constitution of Ireland.

4.10 Further submissions in respect of s.8 of the ADMCA Guiding Principles were as follows;

(i) the proposed intervention is necessary to achieve the proposed object, namely, giving effect to the Relevant Person’s will and preference, that he and his spouse be made joint owners of the property [section 8(7)(b)]; and

(ii) all appropriate persons have been consulted and agree that the proposed transfer is the will and preference of the Relevant Person, and is appropriate in all the circumstances (subsections (7)(d) and (8)).

4.11 It was submitted that the RP has a right to equal treatment and in this regard, it was suggested that the arguments set out above are dispositive of any questions arising in terms of the Court’s jurisdiction to make the order sought, and that the Court ought to make the order in the terms requested. However, they were submitted as additional points in terms of the RP’s right to equal treatment. As submitted by Counsel:

i. That a refusal to approve the proposed transfer would arguably be discriminatory, and would preclude the RP from exercising his property and family rights for an arbitrary reason, in contravention of, inter alia, Articles 43 and 41 of the Constitution of Ireland, Article 8 of the European Convention on Human Rights, and Articles 5, 12, and 23 of the Convention on the Rights of Persons with Disabilities.

ii. That persons with full capacity are permitted to transfer their property into joint ownership with spouses, and, are even encouraged to do so by the State through the removal of financial barriers. Persons lacking capacity have a right to equal treatment and a right to make the same decision, albeit with support and oversight.

iii. The State promotes equality of persons lacking capacity by having created a statutory scheme of decision support arrangements in the 2015 Act. The said scheme permits persons lacking capacity to exercise legal capacity and to make the same decisions as persons with full capacity.

iv. Article 12 of the United Nations Convention on Rights of Persons with Disabilities (UNCRP), which Ireland has ratified, provides that:

Article 12 – Equal recognition before the law

1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

4.12 Ireland made a declaration in relation to its understanding that substitute decisionmaking arrangements (namely, decision-making representatives) permit persons with disabilities to enjoy legal capacity on an equal basis with others:

“Ireland recognises that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Ireland declares its understanding that the Convention permits supported and substitute decision-making arrangements which provide for decisions to be made on behalf of a person, where such arrangements are necessary, in accordance with the law, and subject to appropriate and effective safeguards.

To the extent article 12 may be interpreted as requiring the elimination of all substitute decision making arrangements, Ireland reserves the right to permit such arrangements in appropriate circumstances and subject to appropriate and effective safeguards.”

4.13 Accordingly, it was submitted that the Court’s discretion arising from s.43 ought to be exercised in a manner conforming with these principles. It is submitted that refusing to approve a DMR to make a decision in accordance with the will and preference of the RP, which a person with full capacity is entitled to make, may amount to unjustified and arbitrary discrimination. Furthermore, as the decision concerns the transfer of property to a spouse, such a refusal may amount to an unjustified interference with the RP’s family, property, and privacy rights as set out above.

5. Relevant Person’s Legal Representative

5.1 The legal representative for the RP made no submissions and gave as their reason that they were unable to obtain instructions from the RP. Therefore, the submission of one of the Applicants in a statement of their view of the RP’s will and preference was not challenged by the RP’s legal representative.

6. Court’s Decision

6.1 I firstly address the specific submissions by Counsel for the Applicant in this case and then comment generally on the rights of RPs and the role of the Court in such an application as this.

7. Addressing the Specific Submissions

7.1 The ADMCA provides for different levels of support for an RP where a person lacks capacity. Only where an RP has not appointed any person to assist and support, is it then necessary for the Court to appoint a suitable person/s to act as an agent [emphasis added] for an RP and ensure that the powers conferred are as limited in scope and duration as is necessary in the circumstance and not simply to give authority to transfer the legal interest in or gifting RP’s assets to third parties . In this regard I reference s.38(9) of the ADMCA which reads as follows:

“In making a decision-making representation order, the court shall, in so far as the order relates to the conferral of powers referred to in subsection (8)(a), ensure that the powers conferred are as limited in scope and duration as is necessary in the circumstances having regard to the interests of the relevant person the subject of the order.”

7.2 Exceptional circumstances would be required in order for the Court to regard it as appropriate to gift RP’s assets rather than ensuring those assets are used for RP’s benefit and for the benefit of those that a RP has an obligation to maintain and to provide for. It is also important for a Court not to frustrate any ‘future intention’ RP may have with regard to the disposal of his/her property/assets.

7.3 While the gifting may be to a person who is indicated as a beneficiary in a Will, the vista of that approach is not sustainable. A Will is a declaratory document and has no force or effect until a person dies. In addition, a schedule of assets and liabilities is furnished before a Grant of Probate is extracted and creditors may or may not be affected by a lifetime transfer

7.4 The Applicants’ submission requested the Court to make an intrusive intervention where there is no such evidence that this intervention is required at this time. It is to be presumed unless contrary evidence is provided to the Court that the RP in this case intended to make a Will and not create a deed of transfer. It is of no benefit to the RP and does not place his wife in any better position than is currently provided for. In this regard the Court Order referred to in paragraph 1 appointing the Appellants as DMRs already provides at paragraph XII for permission to “access, manage and use finances held by the Relevant Person in any financial institution to pay bills and costs related to the care and comfort of the Relevant Person’s wife”.

7.5 The Court upholds the right of a person who lacks capacity to still retain control as far as possible over their property and affairs. It is important to note the appointment of a DMR, appoints that person to act as an Agent for the RP with oversight of the Decision Support Service (“the DSS”) as to the management of the property.

7.6 The submission that the Court is mandated to give effect to the RP’s will and preference to transfer the property into joint ownership with his spouse is an unintentionally misleading interpretation of the ADMCA and the Guiding Principle under s.8 of said Act. Instead, a more appropriate interpretation is that the Court is mandated to give very serious consideration to the transfer of RP’s property if it can be clearly established that it is the RP’s will and preference.

7.7 The submission that there is not, nor will there be any foreseeable difficulties at all, subject to the Court’s approval, is in my view simply a statement that the Applicants see no difficulties. However, it is a statement without confirming if there are no charges, outstanding contract, debts, representations etc.

7.8 There was no urgent need demonstrated to the Court for a deed of transfer of the Family Home into joint names of both spouses. The reason furnished was for convenience purposes rather than any demonstrated hardship.

7.9 Anticipated delays in the Probate office in furnishing a grant of Probate or Administration are not a valid reason for overriding legislation enacted by the Oireachtas. In the event there is an emergency need for a grant of Administration, an application for a Grant of Administration can be made to both the Circuit Court and the High Court under s.27(4) of the Succession Act 1965 where it deems it so necessary.

7.10 I do not accept that there is sufficient clarity on the submission before the Court on the ‘will and preference’ of the RP as to the proposed transfer. In addition, the statement that “Approving transfer into joint ownership is an action in good faith and for the benefit of the Relevant Person” is made without any real supporting evidence. It is important to point out that the Court must have regard to the safeguards to protect RP’s property and not to gift it without very clear reasons and taking account of all of the circumstances.

7.11 Overall, I have come to the conclusion that while the submission sets out the detail of the Act and refers to United Nations Convention of the Rights of Persons with Disabilities, it does not give substantive reasons for the order being sought. In particular, there is no indication of any real jeopardy to the spouse of the RP in not obtaining a joint share in the property at this time.

8. The Role of the Court in Assessing the Application

8.1 Whether a person has decision-making ability or not does not in any way diminish their Constitutional rights and this has been enunciated numerous times by the Superior Courts such as for example the Supreme Court cases of in Re: A Ward [1996] 2 IR 79 per Denham J. (as she then was) and in AC v. Cork University Hospital [2019] IESC 73 per O’Malley J.

8.2 A person’s capacity is to be construed functionally per s.3 ADMCA. This section reads as follows:

3. (1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the

decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

(3) A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).

(4) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.

(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.

(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.

(7) For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of—

(a) each of the available choices at the time the decision is made, or

(b) failing to make the decision.

8.3 Heslin J. referred to the essential elements of assessment of capacity in EM v. MM [2024] IEHC 238 as follows at p.5, para. 17:

“the four elements of capacity on a functional assessment are: first, the ability to understand information relevant to a decision; second, the ability to retain that information long enough for the purposes of forming a view; third, the ability to weigh up and use that information in the context of balancing alternatives relative to the decision; the fourth element being the ability to communicate.”

8.4 The duty of a lawyer acting for an RP who lacks capacity is not confined solely to obtaining instructions directly from the RP. Indeed, lawyers will in very many cases find it difficult to obtain instructions directly from an RP who has diminished capacity. In these circumstances the RP’s rights still need to be protected. Indeed, the Oireachtas made specific provision for legal advice and legal representation in respect of applications under Part 5 and Part 6 of the ADMCA to ensure that an RP has access to independent advice and representation.

8.5 In this regard I would like to point out the following:

i. The starting point is to acknowledge that a person’s capacity can vary from day to day depending on their condition or the legal issue with which they are presented.

Lawyers should be able to assess their instructions in light of the functional assessment in s.3 and the Guiding Principles in s.8 of the ADMCA. In this case it is clear from the evidence of the capacity report and accepted by all parties and the Court, that the RP lacks capacity to effect a deed of transfer. The fact that the RP smiled and squeezed the hand of the advocate does not alter the functional assessment that the RP was not able to assess the situation functionally as outlined in s.3 of the ADMCA.

ii. Communication difficulties do not of themselves equate with reduced decisionmaking capacity. Some RPs can benefit from the expertise of a specialist such as a speech and language therapist and also an advocate in their communication. In this case the assistance by the advocate was not sufficient to convince the Court that the will and preference of the RP was ascertainable to transfer the Family Home in accordance with s.8(7)(b) of the ADMCA.

iii. Even where instructions cannot be obtained, the lawyer should investigate the application, for example, by examination or cross -examination of a witness and/or advising the Court if the rights of the RP are in fact being protected.

8.6 The necessity of independent legal advice, and the various equitable principles such as for example undue influence, unconscionable conduct, improvident transactions (Carroll v. Carroll [1999] IESC 11) and misrepresentation etc are still relevant if a person’s lacks capacity. The RP’s lawyer should at least attempt to ascertain the legal position. The minimum starting point is to be aware of the possibility of conflicts of interest and so advise the Court if there are any legal issues which the Court should consider.

8.7 Counsel for the Applicant stated that the parties should not be penalised just because the RP lacks capacity. In other words, it is good public policy to facilitate a transfer of a Family Home into joint names when the parties are spouses and that they should not be disadvantaged by the fact that the transferor lacks capacity.

8.8 Firstly, public policy is not the equivalent of legislation. Indeed, many public documents are never transposed into legislation. In this regard the judgment of Hardiman J. in Martin Corbally v. The Medical Council, Ireland and the Attorney General [2015] IESC 9 at para. 39 is pertinent. He references with approval Crilly v. Farrington [2001] 3 IR 251 at p.

22 where it was stated as follows:

“While obviously the departmental memo can be of no assistance to the construction of the Act passed before it, I do not consider that the ministerial statement can be of any assistance either. It is ultimately for the Court and only the Court to decide whether a charge calculated in the manner suggested by the Minister can be regarded as a quantum meruit charge. For the reasons which I have indicated earlier in this judgment, I do not think that it can.”

8.9 Secondly, even if there are no adverse consequences for an RP or their estate it is a fundamental principle of judicial policy that laws should be altered deliberately rather than casually, and that the Courts must be measured in respecting the Oireachtas’ right to change the law. The general policy of the Courts was succinctly outlined by Finnegan J. in Meagher v. Luke J Healy Pharmacy Ltd [2010] 3 IR 743 at p. 754, para. 22 as follows:

“I am satisfied that had the Oireachtas intended to confer upon a lessee a cause of action where none had previously existed it would have done so in clear and unambiguous terms.”

8.10 In this case had the Oireachtas intended to alter the law as suggested by the Applicant’s Counsel to enable a Family Home to be transferred into joint names of both spouses notwithstanding the registered owner lacks capacity, it is to be expected that clear wording would have been used. No such words were used. I am therefore satisfied that the ADMCA did not alter the law by providing a remedy where none previously existed. In so holding I am mindful that the ADMCA is an Act upholding the rights of vulnerable persons whose capacity is diminished, and this is relevant in construing its provisions. Notwithstanding this, I am satisfied that had the Oireachtas intended to confer upon 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.

8.11 I refuse the Application. As the RP’s lawyer made no submissions to the Court, my initial view is that I should make no order as to costs. However, if either side would like to address this matter, I will hear oral submissions.