High Court registers Enduring Power of Attorney despite sibling objections and minor formal defects.

THE HIGH COURT

[2025] IEHC 344

[EPA 826/2024]

IN THE MATTER OF THE POWERS OF ATTORNEY ACT 1996

AND IN THE MATTER OF AN INSTRUMENT CREATING ENDURING POWER OF

ATTORNEY DATED 27 NOVEMBER 2020 BY RK

BETWEEN

DK AND CK

APPLICANTS

AND

PK

RESPONDENT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 18th day of June, 2025 Index

1. Introduction……………………………………….……………………………….…2

2. Summary of Decision………………………………………………………………...3

3. The EPA……………………………………………………………………….…..….3

4. Notice of Execution of EPA…………………………………………………….…....8

5. Application to the Registrar for Registration of the EPA……………………....…8

6. Objection Filed by PK………………………………………………………………12

7. Application to Court for Registration of the EPA…………………….………..…17

8. Hearing on 3 June 2025…………………………………………………………….23

9. Decision………………………………………………………………………...……26

10. Conclusions………………………………………………………………...…….….34

11. Closing Observations………………………………………………….……………35

1. Introduction

1. This is my judgment on an application by two attorneys appointed under an Enduring Power of Attorney executed by their mother, the donor, RK on 27 November 2020 (the “EPA”) for registration of the EPA pursuant to s. 10 of the Powers of Attorney Act 1996 (the “1996 Act”). The attorneys are two of the donor’s daughters and their application is supported by a number of their siblings. The identities of the parties and places involved have been anonymised pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 in light of the serious medical condition from which the donor is suffering.

2. The application to the court for registration of the EPA is required as another sibling (PK) has objected to its registration and is supported in his objection by a number of other siblings.

3. Following the exchange of affidavits, including affidavits sworn by the solicitor for the donor and by a registered medical practitioner, both of whom completed the relevant parts of the EPA, as well as affidavits sworn by a number of siblings on each side of the dispute, I listed the matter for hearing on 3 June 2025.

4. Neither side was legally represented at the hearing. Each side presented its case succinctly and in a polite and courteous manner. It was evident to me that despite the extent of the differences and disputes between them, all of the siblings have the best interest of their mother, the donor, at heart and that that is what has motivated them in advancing their respective positions in the course of this application. Nonetheless, it is most unfortunate, to say the least, that it was not possible for all members of the family to resolve their differences and to reach agreement on how their mother’s interests could be best served in her advancing years. My suggestion of mediation at the hearing on 3 June 2025, received an unenthusiastic response from both sides. However, it has, in any event, been necessary for me to decide the application given that the validity of the EPA was put in issue by the objector. Nonetheless, I continue to urge the parties and their siblings to attempt to resolve their differences, including by mediation, so as to make the most of the time they have with their mother.

2. Summary of Decision

5. For the reasons set out in greater detail in this judgment, I have concluded that the objection made to the registration of the EPA must be rejected and that the EPA should be registered forthwith. I have concluded that, contrary to the objection made, the donor did have capacity to create the EPA at the time and that all the formalities required under the 1996 Act, the Enduring Power of Attorney Regulations 1996 (S.I. No. 196 of 1996) (as amended) (the “1996 Regulations”) and Order 129 RSC (as amended) have been complied with. I am satisfied, therefore, that the EPA is and remains valid and subsisting. I am also satisfied on the evidence that the donor has become “mentally incapable” (being the term used in s. 10(3)(c) of the 1996 Act) and that she lacks capacity to manage her affairs (and there was no dispute between the rival factions of siblings on that issue). I am further satisfied that there is no evidence to support the contention that the two attorneys appointed by the donor are unsuitable to be her attorneys. Finally, I am satisfied that no fraud or undue pressure was used to induce the donor to create the EPA. In those circumstances, I direct that the EPA be registered forthwith pursuant to s. 10 of the 1996 Act.

3. The EPA

6. The donor, who is now in her early 80s, has severe Alzheimer's dementia and is residing in a community hospital in Leinster, executed the EPA on 27 November 2020. The circumstances in which she did so are set out in an affidavit sworn by MT (Ms. T), the solicitor then acting for the donor, on 12 May 2025. Before outlining those circumstances, I will refer to the salient provisions of the EPA itself.

7. The EPA is in the form set out in the First Schedule to the 1996 Regulations and includes the explanatory information in Part A of the form and the statements in parts D and E, as required by Regulation 3(a) and (b) of the 1996 Regulations. Part A of the instrument executed by the donor contains the explanatory information set out in Part A. In Part B of the instrument, the donor is recorded as having appointed two of her daughters, DK and CK, to act jointly as her attorneys for the purposes of Part II of the 1996 Act. She gave the attorneys general authority to act on her behalf in relation to all her property and affairs and with authority to take decisions on all matters on her behalf. As required by Regulation 7 of the 1996 Regulations, the donor named her husband JK and one of her sons, PK, as notice parties, to whom notice of the execution of the EPA was required to be given. The donor stated that her attorneys were to be paid no remuneration. She further stated that she intended the EPA to be effective during any “subsequent mental incapacity” to which she might be subject and confirmed that she had read or had read to her the information contained in paras. 1 to 13 of Part A of the EPA (i.e. the explanatory memorandum). The donor is recorded as having signed the instrument on

27 November 2020 in the presence of Ms. T.

8. The two attorneys are both recorded as having signed Part B of the instrument. DK is recorded as having signed it on 29 December 2020 in the presence of a named witness. CK is recorded as having signed it and her signature is recorded as having been witnessed by the same witness. However, the document does not state the date on which CK signed. SW (Mr. W), a solicitor who previously acted for the attorneys, swore an affidavit on 8 October 2024, when registration of the EPA was being sought, in which he stated that CK signed the instrument on the same date as DK, namely, on 29 December 2020 and that it was “an omission that [CK] did not date it”. Mr. W stated that he verified the information with Ms. T who confirmed those facts.

9. Ms. T completed Part D of the EPA in which she stated that after “interviewing the donor”, she was satisfied that the donor understood the effect of creating the enduring power and that she had “no reason to believe that [the] document [was] being executed by the donor as a result of fraud or undue pressure”. Ms. T is recorded as having signed the relevant part of the document on 27 November 2020, being the same date on which the donor is recorded as having signed it.

10. A registered medical practitioner, Dr. AO’B (her first name was misspelt on the typed version of the document and corrected in handwriting) completed Part E of the document in which she stated that in her opinion, at the time the document was executed by the donor, the donor “had the mental capacity, with the assistance of such explanation as may have been given to the donor, to understand the effect of creating the power”. Dr. O'B signed that part of the document on 8 December 2020.

11. As explained earlier, Ms. T, the solicitor who was acting for and advising the donor, swore an affidavit on 12 May 2025 in connection with the attorneys’ application to register the EPA. In that affidavit Ms. T outlined that on 24 January 2020, the donor and her husband attended Ms. T’s office in Co. Dublin to discuss the making of an enduring power of attorney. She explained that since the 1996 Act, she has advised all her clients “contemplating their later life about the benefits of having an instrument to create an enduring power of attorney in place”. Ms. T stated that she advised the donor fully in relation to the nature and effect of creating an enduring power of attorney and was satisfied that the donor completely understood what she had explained to her. She said that having received her advice, the donor instructed her that she wished to appoint her daughters, DK and CK, to act jointly as her attorneys. Ms. T noted that the donor was required by law to nominate her spouse as one of her notice parties and she chose her son, PK, as the other notice party. Ms. T then told the donor that she would prepare and send her letter of advice recapping their discussion together with the draft instrument to create an enduring power of attorney for her review.

12. Ms. T stated that on 10 February 2020, she sent a letter of advice by post to the donor with the draft instrument to create an enduring power of attorney. The letter was addressed to the donor and to her spouse, JK (as she was also advising him about an enduring power of attorney which was also under consideration but which I am not concerned with in this application). In that letter, Ms. T summarised the advice she had provided at the meeting in January 2020 and drew the donor's attention to Part A of the draft instrument to create an enduring power of attorney which contained the explanatory information.

13. The letter comprehensively advised the donor and her husband in relation to their respective enduring powers of attorney. Ms. T expressly noted that the donor’s doctor, Dr. O’B, would be required to sign Part E of the document stating that the donor had the mental capacity to understand the effect of creating the instrument.

14. Ms. T explained that as a result of the COVID-19 pandemic, it was not until November 2020 that a further appointment was made for the donor to call into her office to finalise the instrument. The donor attended Ms. T’s office on 27 November 2020. She asked the donor if she was intent on proceeding on the basis of the instructions provided at the meeting on 24 January 2020 and the donor confirmed that that was the case. Ms. T then presented the instrument to the donor in the same terms as the draft which she had provided with her letter of 10 February 2020. Ms. T, conscious of the fact that several months had passed since their previous discussion and since she had sent the draft instrument, read aloud to the donor paras. 1 to 13 of Part A of the instrument which outlined the effects of creating the enduring power of attorney. She explained and paused after every paragraph to show how the paragraph related to the donor’s instructions and to the document which she had prepared. She also summarised paras.

14 - 21 of Part A relating to the duties of the attorneys on accepting their appointment as such. She stated that she then read out Part B of the instrument, again explaining the implications as she did so and confirming with the donor that it reflected her instructions. She asked the donor again if she understood what she was doing and if she was happy to proceed. The donor informed her that she was giving her daughters, DK and CK, the power to look after her personal and financial affairs in the event that she were to lose her mental capacity and she reiterated that she was “quite happy to proceed”. Ms. T explained that she gave some further advice to the donor that the instrument might need to be registered and the donor informed her that she understood that the instrument would only be applicable if she lost mental capacity.

15. Ms. T confirmed in her affidavit that as a consequence of her engagement with the donor at that consultation and in her previous consultation in relation to the instrument, she was “unequivocally satisfied that [the donor] fully understood the effect of creating the enduring power of attorney and that she was acting freely, voluntarily and without fraud or undue pressure”. Ms. T explained that the donor then signed Part B of the EPA and that she witnessed her signature. She then completed Part D. She stated that the donor then signed the notices of execution of the document in her presence. Ms. T stated that towards the end of the consultation on 27 November 2020, she informed the donor that she would need to attend her medical practitioner, Dr. O'B, as soon as possible in order for her to complete Part E of the document. She further advised the donor that after her medical practitioner had completed the statement Part E, the two attorneys, DK and CK, having first read paras. 1 – 2 and 14 – 21 of Part A of the EPA, would need to complete and sign Part C in the presence of a Peace Commissioner.

16. Ms. T stated that she subsequently received back the donor's original EPA with the statement duly completed at Part E of the document by Dr. O'B with Part C signed by her attorneys, DK and CK. She also stated that she served the required notices of execution on the notice parties.

4. Notice of Execution of EPA

17. Notices of the execution of the EPA addressed to the two notice parties, the donor’s husband, JK, and her son, PK, were signed by the donor on 27 November 2020. The notices were served by Ms. T on the notice parties, as required by Regulations 7 and 8 of the 1996 Regulations. Ms. T swore an affidavit of service to that effect on 10 February 2021.

5. Application to the Registrar for Registration of EPA

18. The evidence, including that contained in the affidavit of Dr. O’B and in the certificate of Dr. KC dated 16 May 2024, as well as the other evidence and materials provided by the parties on this application, discloses that the donor’s mental condition and capacity deteriorated over the course of 2021 as her dementia became more severe and her husband, JK, who is also in his 80s, became less able to look after the donor at home, such that the donor was admitted as an inpatient to a general hospital in the Leinster area in December 2023, and was subsequently transferred to her current placement in the community hospital on 25 January 2024 for long stay care.

19. A decision was taken by the attorneys that it was necessary to activate the EPA and, as a consequence, they decided that it was necessary to seek to register the EPA. It should be noted that under s. 9(1) of the 1996 Act, where an attorney under an enduring power “has reason to believe that the donor is or is becoming mentally incapable”, the attorney is obliged “as soon as practicable” to make an application for the registration of the instrument creating the power. The attorneys here had obtained a report from Dr. KC, the medical officer in the community hospital, dated 16 May 2024, which stated that at a consultation on 9 May 2024, she found that the donor was unable to engage with her; her understanding of the issues was “extremely limited”; her power of attention was “totally lacking” and that as a consequence the donor was “unable to assess or process [her] request”. Dr. KC concluded that the donor lacked capacity to manage her own affairs.

20. It is not in dispute that as of May 2024, the donor did lack capacity to manage her own affairs and had become “mentally incapable” of doing so (within the meaning of that term in s. 9(1) of the 1996 Act). In those circumstances, the attorneys were obliged to make an application to register the EPA. One of the issues in this application is whether the donor had the necessary capacity to execute the EPA in November 2020 or whether her mental condition at that time was such as to deprive her of such capacity, as PK, the objector has contended.

21. Section 9(2) of the 1996 Act provides that before making an application for the registration of the EPA, the attorneys were required to comply with the provisions as to notice set out in the First Schedule to the 1996 Act. Under para. 1(1) of Part 1 of the First Schedule, the attorneys were required, before making the application for registration, to give notice of the intention to do so to the donor. By virtue of para. 2(1)(a) of Part 1 of the First Schedule to the 1996 Act and Regulation 9 of, and the Fourth Schedule to, the 1996 Regulations, the attorneys were obliged to give notice of their intention to apply for registration of the EPA to the persons named as notice parties in the EPA, namely, the donor’s husband, JK and her son, PK.

22. In compliance with their obligations under s. 9(1) of the 1996 Act, the attorneys arranged for notices of their intention to apply for registration of the EPA, dated 7 June 2024, to be served on JK and PK. Affidavits of service of TC of Mr. W’s firm were sworn on 8 July 2024 and confirm service of the relevant notices on JK and PK by registered post sent on 10 June 2024. It was confirmed in those affidavits of service that the registered letters were not returned. The attorneys also arranged for notice of the intention to register the EPA to be served on the donor by registered post sent on the same date, 10 June 2024. Another affidavit of service sworn by TC on 8 July 2024 confirms such service.

23. On 2 August 2024, an application for registration of the EPA was made to the registrar of Wards of Court by Mr. W, the solicitor then acting on behalf of the attorneys. That application was grounded on affidavits sworn by DK and CK on 18 July 2024, and was made pursuant to s. 9 of the 1996 Act and Ord. 129, r. 3 RSC. Order 129, rule 3(1) requires that an application for registration of an enduring power of attorney must be made to the Registrar of Wards of Court by lodging an application for registration in the Office of Wards of Court and that such an application must be grounded on the affidavit of the attorney or attorneys seeking such registration. The application is required, as far as practicable, to be in the format set out at Form No. 1 of the Appendix to Ord. 129. Order 129, rule 3(2) contains the requirements for the affidavit of the attorney or attorneys. It provides that the affidavit must “fully set forth the facts and circumstances giving rise to the application” and must contain certain matters which are then specified in paras. (a) to (l). The affidavits sworn by DK and CK complied with those requirements.

24. The application identified a number of documents which were annexed to it. They included the EPA itself, copies of the notices of execution of the EPA on the notice parties, copies of the notices of intention to apply for registration given to the donor and to the notice parties, affidavits of service in respect of those notices and the certificate of Dr. KC dated 16 May 2024. Order 129, rule 3(2) requires that the medical certificate issued pursuant to s. 9(4) of the 1996 Act be annexed to the application. Section 9(4) of the 1996 Act provides that: “A certificate to the effect that the donor is, or is becoming, incapable by reason of a mental condition of managing and administering his or her own property and affairs and purporting to be signed by a registered medical practitioner may be accepted as evidence of the matters contained therein.”

25. I have referred earlier to the conclusions in Dr. KC’s report. Earlier in her report, Dr. KC noted that, from a review of the donor’s medical records, the donor had experienced “mild memory difficulties which had progressed initially very gradually from 2018 to her present state of obvious Alzheimer’s dementia, the severity of which has necessitated her placement [in the community hospital] for full supportive care”. There is no dispute on this application as to the contents of Dr. KC’s report.

26. Order 129, rule 3(3) required that the application for registration of the EPA be served on the donor personally. It required service of the application on the notice parties, but such service could be affected by prepaid registered post. The application was served personally on the donor on 6 August 2024, by Mr. W, the solicitor then acting for the attorneys. Mr. W swore an affidavit of service on 7 August 2024, outlining the circumstances in which he personally served the donor in the dining room of the community hospital, with the two attorneys also being in attendance. Mr. W explained that he tried to explain the application to the donor and then tried to explain it again in the absence of the two attorneys. Mr. W observed that it was clear that the donor understood very little, if any, of the information which he gave to her despite the fact that he used very simple language to explain the nature of the application and the nature of the documentation he was providing to her and despite the fact that he explained it to the donor on three occasions.

27. A copy of the application for registration was served by registered post on JK and PK on 7 August 2024. Separate affidavits of service in respect of such service were sworn by TC on 13 August 2024. However, the registered letter serving a copy of the application on JK was returned to Mr. W’s office approximately four weeks later. He served it again by registered post on 5 September 2024, and the registered letter was signed for by JK on 12 September 2024. Mr. W swore a supplemental affidavit of service in respect of such service on 17 September 2024.

6. Objection Filed by PK

28. One of the notice parties, the donor’s son, PK, gave notice of objection to the registration of the EPA on 21 October 2024 (filed with the Registrar of Wards of Court on 25 October 2024). That objection was made pursuant to ss. 10(2) and (3) of the 1996 Act, and Ord. 129, r. 3(6) RSC. The grounds of objection, which were supported by an affidavit sworn by PK on 21 October 2024, were as follows:

29. His principal objection was that the EPA was not valid on a number of grounds. First, he contended that the donor had impaired capacity at the time of the execution of the EPA in November 2020. She now has advanced dementia, and it was contended that that was “clearly present at that time”. Second, he contended that the donor has, and had in November 2020, “significant eyesight issues”. Third, he alleged that no evidence was provided to demonstrate that the donor received a proper explanation of the EPA or that she obtained advice that “alternative legal opinion” be sought. Fourth, PK stated his belief that one of the attorneys, DK, is also the executor of the donor’s will and that a conflict of interest therefore arose. Fifth, he alleged that the original solicitor who dealt with the matter (presumably Ms. T) repeatedly refused to furnish him with relevant documentation. Finally, he contended that the solicitor for the attorneys (Mr. W) has also refused to provide documentation requested by him.

30. The second objection advanced by PK was that the enduring power was “no longer a valid and subsisting power”. He contended that the procedures under new legislation (presumably the Assisted Decision Making (Capacity) Act 2015 (as amended)) meant that the EPA was no longer necessary and that the procedures under the new legislation should instead be used. He further contended that the donor’s physical and medical requirements were being managed by the HSE team in the community hospital in conjunction and consultation with a wider group including her husband and children.

31. The third objection advanced by PK was that the attorneys are unsuitable to be the donor’s attorneys. Apparently in support of that contention, PK alleged that fraud or undue pressure was used to induce the donor to create the enduring power. While acknowledging that he was not aware of the evidence required to support an assertion of fraud, he contended that undue pressure was used to induce the donor to create the EPA. In support of that objection, he relied on: first the donor’s medical situation at the time; second, the refusal by the original solicitor (presumably Ms. T) and the doctor (presumably Dr. O’B) to provide him with the documentation he had requested; third, the “interactions of the attorneys with the [community hospital] medical team”; and fourth, he asserted that he did not recognise the signature of the donor on the EPA as being his mother’s signature. PK further complained about the failure of various persons and bodies to provide him with information he had requested. He also contended that the attorneys had assumed the powers under the EPA and repeatedly refused to communicate information about the donor’s condition in a timely and detailed manner with the donor’s husband and with the majority of her children. He alleged that the attorneys had “marginalised” the donor’s husband and had stopped communicating with him regarding his spouse.

32. Mr. W swore an affidavit in response to the objector’s affidavit on 16 December 2024. In response to the objections, Mr. W stated that Dr. O’B had assessed the donor’s capacity at the time of the creation of the EPA and had completed and signed the required statement in the EPA in compliance with the 1996 Act. Mr. W contended that it was clear from that that the donor did have capacity to execute the EPA. With respect to the point made about the donor’s eyesight, Mr. W stated that the donor had been diagnosed with glaucoma which did not impair her mental capacity or understanding at the time the EPA was executed. He stated that it did not impact on the donor’s ability to understand the nature and effect of the EPA. With respect to the point made about legal advice and explanation to the EPA, Mr. W pointed out that the donor had the benefit of legal advice from her solicitor at the time, Ms. T, who completed and signed the required part of the EPA. He contended that the provisions of the legislation were fully complied with and that there was no requirement that any alternative legal opinion be obtained. He contended that the solicitor’s statement and the medical practitioner’s statement in the EPA were properly executed and, if necessary, affidavits could be obtained from Ms. T and Dr. O’B. With respect to the alleged conflict of interest, Mr. W stated that DK was not aware of the contents of the donor’s will but that, in any event, no conflict of interest arose. He asserted that if the donor had chosen DK to be her executor, which demonstrated the “special relationship of the trust and confidence that exists between the donor and [DK]”. With respect to the objections based on the alleged failure to produce documents to him, Mr. W stated that Ms. T had furnished him with all of the relevant documents including the affidavits of service confirming that notices of execution of the EPA were served on both notice parties, JK and PK. He contended that all documents to which the notice parties were entitled under the 1996 Act and the 1996 Regulations had been provided to them.

33. Mr. W further observed that the commencement of the 2015 Act (as amended) did not affect the validity of the EPA which remained valid, subsisting and enforceable under Irish law. He further disputed the contention that the attorneys were unsuitable to act as the donor’s attorneys. He pointed to the lack of any evidence to support the contention of fraud or undue pressure. On behalf of the attorneys, he also rejected the allegations made against them and referred to alleged threats made by PK to the attorneys. Finally, he noted that DK was the person nominated by the family to take responsibilities for matters relating to the Fair Deal Scheme application on behalf of the donor and that DK had resumed responsibility for insuring that the weekly fees payable to the community hospital for the donor’s care were paid, reflecting her commitment to her mother’s care and wellbeing.

34. Another affidavit was filed in support of the objection. That was an affidavit sworn by another sibling, SK, on 22 January 2025. That affidavit was not in the papers originally provided to the court but was provided in advance of the hearing on 3 June 2025. I do not find it necessary to set out in full what was stated in that affidavit but will just refer to some of the points raised. I have, however, considered the affidavit in its entirety in deciding this application.

35. One of the points made by SK in the affidavit was that in November/December 2020, she was asked by her father, JK, to bring some documents over to her sister, CK, at her home, that CK and another sister had been chasing their father to sign certain documents which had been in the house “for some time”, that they had now just been signed and were ready to be brought over to CK. JK said that he understood that the documents were “something to do with their wills”. However, SK said that they were EPAs for her father, JK, and her mother, RK, and that she handed those to CK in person in her home. She stated that she had been unaware that these were in progress and that CK was unwilling to discuss them. I should observe at this point that none of this is in my view, relevant at all to the validity of the EPA. Indeed, assuming the documents included the EPA executed by the donor, the account given by SK is consistent with the evidence given by Ms. T in her affidavit. Draft EPAs were sent by Ms. T to the donor and her husband on 10 February 2020. Because of the onset of the COVID-19 pandemic, the donor did not meet again with Ms. T to execute the EPA until 27 November 2020. The donor executed the EPA on that date and was advised then to arrange for Dr. O’B and the two attorneys to complete the relevant parts of the EPA. It is perfectly understandable, therefore, why the donor’s EPA (and presumably that of her husband) were in the house in late November/December 2020. The two attorneys (including CK) completed the relevant parts of the document on 29 December 2020. While there is a dispute between the siblings as to who brought the document to CK to be signed, it is unnecessary to resolve that dispute as it is entirely irrelevant to the validity of the EPA.

36. Insofar as SK complains about the care provided to their mother by the two attorneys during 2021 – 2023, and contrasts that with the care she and her brother PK provided, I do not consider it necessary or appropriate to make any findings on that issue. I am satisfied on the evidence that all of the siblings, including the two attorneys, did their best for the donor during the period in which her dementia was deteriorating, ultimately requiring her placement in hospital and then in the community hospital. While SK complained about the attorneys excluding her and other members of the family from information about the donor’s care following her placement in the community hospital, I do not accept that SK or the other siblings have, in fact, been excluded from any information to which they were legally entitled. In her submission to the court at the hearing on 3 June 2025, SK repeated her complaint about the delay in information being provided to her and to other members of the family. However, she did not dispute that such information was being provided (merely a delay of a day or so in its provision as well as the brevity of the information provided).

37. SK acknowledged in her affidavit that the staff of the community hospital are doing a “wonderful job” caring for the donor and that is a view held by both factions of the siblings. While SK contended that the attorneys are unsuitable to act as attorneys, I do not believe that the evidence set out in her affidavit or in her submission to the court supports that contention.

7. Application to Court for Registration of the EPA

38. In light of the objections made by PK to the registration of the EPA, the attorneys made an application to the court for registration of the EPA on 21 March 2025. That application was grounded on an affidavit sworn jointly by DK and CK. That affidavit fairly summarised the dispute between the attorneys and the objector. The attorneys requested the court to resolve the dispute at the earliest opportunity. They contended that it was in the best interest of the donor for the court to determine that the issue as soon as possible in circumstances where they contended that the validity of the EPA had been properly established, the attorneys had complied with all legal requirements and that any delay could hinder the effective management of the donor's affairs and her ongoing care.

39. The attorneys’ application was returnable before me on 28 April 2025. The application was served on the two notice parties, JK and PK. The attorneys swore affidavits of service verifying the service of the motion papers on JK and PK. However, there was no appearance by either notice party on the return date on 28 April 2025. PK subsequently apologised for his non-appearance and contended that he had not received any notification that the matter was listed on 28 April 2025. He referred to various conversations with persons within the Office of the Wards of Court. Notwithstanding that the affidavits of service verified service of the motion papers on PK and on the donor's husband, JK, I adjourned the attorneys’ application to 19 May 2025. I also requested that the attorneys provide affidavits from Ms. T and from Dr. O'B.

40. The matter was listed before me again on 19 May 2025. Prior to that date, the attorneys swore a supplemental affidavit on 12 May 2025 and also provided the affidavit sworn by Ms. T on the same date to which I have referred earlier. PK did appear remotely on the adjourned date. He sought time to put in a replying affidavit. He also raised the existence of SK's affidavit, which I had not seen at that point. I asked that I be provided with a copy of that affidavit. I also observed that there was no affidavit from Dr. O'B. I was informed by the attorneys that, given the dispute among the family members, Dr. O'B required an order of the court that she swear an affidavit addressing the relevant parts of the objection made by PK. I listed the matter for hearing on 3 June 2025 and gave PK the opportunity of swearing a replying affidavit. I also directed that a copy of SK's affidavit be provided to the court and I directed that Dr. O’B swear an affidavit dealing with the relevant parts of the objection.

41. Dr. O'B swore an affidavit on 26 May 2025. She had previously completed Part E of the EPA on 8 December 2020 in which she stated that, in her opinion at the time the EPA was executed by the donor, the donor “had the mental capacity, with the assistance of such explanation as may have been given to the donor, to understand the effect of creating the power”. Dr. O'B’s affidavit was short and to the point. She stated that she had attended the donor in her professional capacity for 16 years, between 12 February 2008 and 2 April 2024. In response to the objections raised by PK, Dr O’B stated as follows: “(a) In my opinion the said [donor] was not blind at the time of making the instrument and was visually impaired only and she had the mental capacity to understand the effect of creating the enduring power of attorney.

(b) The said [donor] had not commenced medication for dementia and she had the mental capacity to understand the effect of creating the enduring power of attorney.

(c) The said [donor] did not have advanced dementia and had the mental capacity to understand the effect of creating the enduring power of attorney”.

42. Dr. O’B, therefore, confirmed on affidavit that in her opinion at the time the donor executed the EPA on 27 November 2020 she had the capacity to do so, that she did not have advanced dementia at that time, that she had not commenced medication for dementia by that stage and that her capacity to understand the effect of the EPA was not adversely affected, whether by her visual impairment or otherwise. Dr. O'B's evidence is obviously crucial to a critical issue which I have to determine, namely, the donor's capacity to create the EPA at the time of its execution on 27 November 2020. The objector did not provide evidence from any other medical practitioner disputing or contesting Dr. O’B's evidence and she was not cross examined on her affidavit.

43. The objector, PK, swore a replying affidavit on 22 May 2025. He repeated and elaborated on the objections which he had previously made in response to registration of the EPA. With respect to his contention that the EPA was not valid, he relied on a number of matters including his assertion (based on what he says he was told by the donor and her husband) that the relevant documents were signed in their home and also on SK's statement that she had brought the paperwork for the EPA from her parents’ be house to CK. PK queried whether the EPA was executed by the donor in Ms.

T’s office and suggested in his affidavit that this was done in his parents’ home. He made reference to the COVID – 19 restrictions and queried how his parents could have visited their solicitors during the restrictions in place at the time. It must be said that all of these suggestions are directly contradicted by the evidence of Ms. T to which I have referred earlier and in respect of which she was not cross examined by PK. The same applies to PK’s query and the authenticity of the donor’s signature on the EPA. PK disputed the contention that the donor had capacity at the time of the creation of the EPA in November 2020.

He stated that the donor has advanced dementia and that the condition was “clearly present” at that time. He stated that he made many requests for information from Dr. O'B which were not answered, including about legal documentation which he says the donor was asked to sign on 12 April 2022 when he brought the donor to an appointment with Dr. O'B. He stated that the donor refused to sign the document as she was confused by it and did not understand it. He questioned why paperwork in respect of the EPA was being “presented to [his] mother for signature some 17 months after the paperwork was signed”.

I must state here that whatever documentation the donor may be asked to sign in April 2022, it was not the EPA. The EPA was signed by the donor on 27 November 2020 as confirmed by Ms. T. No part of the EPA or any document relating to the execution or application for registration of the EPA was signed by the donor after November 2020. Whatever document PK was referring to in his affidavit was, therefore, not a document relating to the donor's EPA. Nor clearly was she being asked to sign a document in relation to the EPA 17 months after she had executed the document.

The latest any signature was affixed to the EPA was when the two attorneys signed on 29 December 2020.

44. Furthermore, with respect to the donor’s capacity at the time, Dr. O'B completed the relevant part of the EPA on 8 December 2020 confirming the donor's capacity to execute the document and confirmed the position in the affidavit which she swore on 26 May 2025. There is no medical evidence to dispute Dr. O’B's evidence.

45. PK also referred to the donor's “significant eyesight issues” in November 2020. However, again Dr. O'B has sworn that the donor's visual impairment at the time the EPA was executed did not affect her capacity to create the power. There is no medical evidence to contradict Dr. O’B's opinion on that issue either. Insofar as PK seeks to dispute the donor’s capacity at the time of the execution of the EPA on the basis that she was on “strong dementia medication for some time” by that stage, that assertion is also flatly contradicted by Dr. O’B. Dr. O’B has sworn that the donor had not commenced medication for dementia at the time of the execution of the EPA. There is no evidence to dispute that contention. Indeed, the copy of the prescription handed in by PK at the hearing on 3 June 2025 relates to a prescription for Donepezil for the donor and is dated 14 October 2021, 13 months after the EPA was executed.

46. PK reiterated his contention that there is a conflict of interest in DK acting as attorney in circumstances where she is an executor under the donor’s will. While noting that it is DK’s position that she is not aware of the contents of the donor’s will, I do not see how conflict of interest arises even if it is the case that DK is an executor under the will.

47. Insofar as PK relies on the failure by Ms. T and Mr. W to provide documentation to him or to respond to his request for information, it does not seem to me that this gives rise to any valid basis of objection once the strategy formalities in terms of the provision of the required notices I have been complied with. In my view, they have been complied with in this case and these complaints do not provide any valid legal objection to the registration of the EPA.

48. PK repeated his contention that the EPA is no longer a “valid and subsisting power”, again relying on legislative developments, including, presumably, the commencement of the 2015 Act (as amended). However, that does not provide a legal basis for not registering the EPA if it complies with the statutory formalities.

49. PK also repeated his contention that the attorneys are unsuitable to be the donor's attorneys although none of the grounds advanced in support of that objection in fact support it. While acknowledging that he is not aware of the evidence required to support a claim of fraud, PK continued to claim that undue pressure was placed on the donor to create the EPA and the same grounds are relied on in that respect as in the original objection. They essentially turn on the donor's capacity at the time of the execution of the EPA and the alleged failure by Ms. T and Dr. O’B to provide documentation to him. I have already addressed those issues and cannot see how they provide a valid objection to registration of the EPA.

50. PK raised some further points in his affidavit in support of his contention that the EPA is not valid. Among those points was that the EPA documents were delivered to the home of CK and he contended that that in some way invalidated the documentation as it could have been “tampered with”. However, that misapprehension is firmly put to bed by Ms. T’s affidavit. There is no evidence whatsoever that the EPA was “tampered with” in anyway. Insofar as PK continues to query the authenticity of the donor's signature on the EPA, as I have already indicated, the suggestion that the donor did not sign the document is flatly rejected by Ms. T who confirmed on affidavit that the donor did sign the document in her office on 27 November 2020.

51. Much of the balance of the PK's affidavit is directed to querying the necessity for the EPA in circumstances where, fortunately, the donor is “very happy” in the nursing home and her medical needs are being “handled excellently”.

52. However, if the EPA is valid and complies with all of the statutory formalities, and if I reject all of the objections permitted under s. 10(3), I will be obliged to register the EPA, irrespective of whether a number of the donor's children would prefer if that did not happen. To register the EPA in those circumstances would be to give effect to the clearly stated views and wishes of the donor at the time she executed the EPA.

53. Finally, I note that PK strenuously denied the allegations that he had made any threats towards the attorneys or acted in a threatening manner. I must say that I have not seen evidence of such threats by PK and the emails relied on by the attorneys in support of that claim do not support it. I am satisfied that on the basis of the evidence provided to the court on this application, PK has not made inappropriate threats or behaved in a threatening manner towards the attorneys. I am satisfied that PK has at all times acted out of a sense of loyalty to the donor and to his father and in what he believes to be their best interests. The same, in my view, applies to the attorneys. However, the fact that PK has done so does not mean that he has established any valid objections to the registration for the EPA.

8. Hearing on 3 June 2025

54. The hearing proceeded before me on 3 June 2025. Both factions of siblings attended the hearing. Neither side was legally represented. Both sides relied on the affidavits and documentation previously exchanged and presented their side of the case in a succinct, polite and courteous manner, notwithstanding that it is evident that there are serious issues between both factions. My suggestion of mediation did not receive an enthusiastic response from either side. However, as I will explain in my conclusions later, a mediation would be very beneficial with a view to reducing or eliminating the areas of dispute between the parties in relation to their mother, irrespective of the outcome of this application.

55. The attorneys relied very much on all of the affidavits sworn in connection with the application including those sworn by Ms. T and Dr. O’B. They asserted that on the basis of the evidence, the EPA is valid and that there is no question but that the donor had capacity to execute the instrument when she did in November 2020. They asked the court to reject objection to registration made by PK.

56. PK relied on his affidavit and on the affidavit of SK. He rejected the allegations that he had behaved in a threatening manner to the attorneys or that had attempted to interfere with the donor's care in the community hospital. He queried aspects of Dr. O'B's affidavit and raised the point mentioned earlier about the document which he claims Dr. O’B asked the donor to sign in April 2022. As I have already explained, that could not have been any document relating to the EPA which was signed by the donor on 27 November 2020. The donor was not required to sign any further document in relation to her EPA after that date. PK was not in a position to identify what the particular document was.

57. PK handed up a number of documents including a document generated by DK on Google Docs to which other members of the family, including PK, had been given access. These documents had not been put on affidavit before the hearing although I permitted PK to make reference to them. His essential point was that the document showed that as of September 2021, the donor had advanced dementia and that was only

10 months after the EPA was executed. He queried how the donor could have capacity at the time of the execution of the EPA when 10 months later there was reference by DK and other members of the family to the donor having “perhaps stage 5 dementia”. PK also queried the circumstances in which the EPA was said to have been executed. While stating that he was not opposed to an EPA for the donor, he was opposed to the EPA which the attorneys were seeking to register on the basis that it was very far reaching. He explained that he felt that he had no option but to object to the EPA and felt this its effect would also disenfranchise his father, the donor's husband. He also felt that the creation of the EPA had been done in a very secretive way which had divided the family.

58. As I pointed out to PK during his submissions, he faced a major difficulty in sustaining his objections in that Ms. T and Dr. O’B had sworn affidavits in which Ms. T outlined in great detail the background to the EPA and the circumstances in which the EPA came to be executed by the donor and then completed by herself, Dr. O’B and the attorneys. In her affidavit Dr. O'B had addressed and rejected the contention that the donor had advanced dementia or was on medication for dementia or lacked capacity as a result of any visual impairment in her affidavit. PK acknowledged that he did not have evidence to dispute those affidavits.

59. Both attorneys responded, disputing many of the submissions advanced by PK. In response to the contention that it was not necessary to register the EPA at this stage, the attorneys pointed out that there was ongoing concern in relation to their father's behaviour towards the donor and the fact that the persons in charge of the community hospital needed clarity as to who could make decisions on behalf of the donor in circumstances where her husband was no longer able to do so.

60. Finally, I afforded SK an opportunity to address the court. She addressed again the circumstances in which she said that she brought the EPA to CK to be signed. As I have indicated earlier, I do not see this issue as remotely relevant or as affording any basis for an objection to the registration of the EPA. I have also referred to what SK has said about being excluded by the attorneys from information in relation to the donor. SK acknowledged that she and others on her side of the dispute did receive information about their mother but that it was very brief and usually a day late. She felt that her side of the family (including their father) was being disenfranchised and that the donor would be very upset (“horrified” was the word that she used) if she knew that that was happening. Without in anyway wishing to undermine the sense of exclusion or disenfranchisement mentioned by SK, and expressing the hope that this can be addressed, if necessary, through a mediation process, it does have to be said that if, as I believe to be the case, the EPA is valid, then it represents the views and wishes of the donor at the time she executed the document and those wishes must as a matter of law be given effect to.

9. Decision

61. Having carefully considered all of the evidence and the submissions of the parties, I have concluded that I am required to, and should, register the EPA pursuant to s. 10 of the 1996 Act and that I should reject the objections made to its registration.

62. While I have set out my observations and certain findings in relation to many of the contentions advanced by PK in support of the objections he has advanced to the registration of the EPA, for completeness I will set out my central conclusions in this section of my judgment.

63. I should first explain the approach which the 1996 Act requires me to take in determining the attorneys' application for registration of the EPA. Under s. 9(1) of the 1996 Act, if the attorneys under an enduring power have reason to believe that the donor is or is becoming “mentally incapable”, they are required “as soon as practicable” to make an application to the court for the registration of the instrument creating the power.

Section 9(1) says that they “shall” make the application in those circumstances. While the term “mentally incapable” is not itself defined in the 1996 Act, the cognate expression "mental capacity” is. Section 4(1) defines that term as meaning, in relation to an individual, “incapacity by reason of a mental condition to manage and administer his or her own property and affairs” and the definition states that “cognate expressions shall be construed accordingly”. The High Court (Laffoy J.) in Fitzpatrick v. FK [2008 IEHC 104], [2009] 2 I.R. 7, held that decision-making capacity had to be assessed on a functional or decision specific basis. That is the approach for assessing capacity in s. 3 of the 2015 Act (as amended).

64. The attorneys had clear evidence in the form of Dr. C’s report of 16 May 2024 that by reason of a severe and advanced state of the donor's Alzheimer's dementia, which had required the donor to be placed in the community hospital since January 2024 for “full supportive care”, the donor lacks the capacity to manager her own affairs. PK does not dispute that that is the case. On the contrary, he maintains that the donor has lacked capacity for some considerable time, including at the time she executed the EPA in November 2020. Having regard to the uncontested medical evidence, I am satisfied that the attorneys were obliged under s. 9(1) of the 1996 Act, to bring the application for registration of the EPA and did so in compliance with that obligation.

65. I am also satisfied that all of the statutory formalities applicable to the execution of an enduring power of attorney were complied with in this case. I have referred to the evidence of the donor's solicitor, Ms. T, concerning the circumstances in which the EPA was executed by the donor and to the service of the various notices of execution of the EPA, the notices of intention to apply for registration of the EPA and the notices of the application for registration of the EPA which were served on all of the required parties under the 1996 Act, the 1996 Regulations and Ord. 129 RSC, and also to the various documents which were annexed to the application for registration, including the medical certificate of Dr. C.

66. In fairness, PK did not dispute that the statutory formalities were complied with. His objections were more focused on the donor's capacity at the time of the execution of the EPA and the precise circumstances in which the EPA was created (as well as on the alleged unsuitability of the attorneys). I will specifically address those objections below.

67. The legal consequence of all of this is provided for s. 10 of the 1996 Act. Under s. 10(1), where an application for registration is made in compliance with s. 9, the Registrar of Wards of Court is obliged to register the instrument to which the application relates unless s. 10(2) applies. Section 10(2) was engaged in this case. One of these situations in which it applies is where a “valid” notice of objection to the registration of an enduring power is submitted by one of the notice parties named in the instrument within the required time period (s. 10(2)(a)). Under s. 10(3), a notice of objection is “valid” if it is made on one or more of the following grounds: “(a) that the power purported to have been created by the instrument was not valid;

(b) that the power created by the instrument is no longer a valid and existing power;

(c) that the donor is not or is not becoming mentally incapable;

(d) that, having regard to all the circumstances, the donor is unsuitable to be the donor’s attorney;

(e) that fraud or undue influence was used to induce the donor to create the power”.

68. When s. 10(2)(a) and s. 10(3) refer to a notice of objection as being “valid”, they mean formally valid, in that the objection is on one of the specified grounds and was submitted within the requisite time period. The effect of making such a “valid” objection is to prevent the Registrar of Wards of Court from registering the relevant instrument and to require the application for registration to be determined by the court.

69. PK did submit a “valid” notice of objection within the meaning of these provisions. In those circumstances, s. 10(2) provides that the court “shall neither register the instrument nor refuse the application until it has made or caused to be made such enquiries (if any) as it thinks appropriate in the circumstances of the case”. I have made those enquiries by directing further evidence to be provided by the attorneys and responding evidence to be provided by PK. I have considered all of that evidence and the submissions made by the parties.

70. Section 10(4) provides that the court may refuse the application on any of the grounds set out in s. 10(3). PK has relied on all but one of those grounds (he does not rely on the grounds set out in s. 10(3)(c), as it is accepted that the donor is “mentally incapable”).

71. Before setting out my conclusions on the objections made by PK (with the support of a number of his siblings), it is necessary to identify on whom the burden of proving or establishing the objections as a matter of law lies. The answer to this question was clearly and decisively given by the High Court (Baker J.) in Re SCR [2015] IEHC 308. In that case, Baker J. stated that a document purporting to create an enduring power of attorney “which appears valid on its face will be presumed to be valid, and the instrument should be registered”. She considered “that that approach is consistent with the scheme of the legislation, which provides a procedure for registration and in the absence of objections and provided due execution as shown, the legislation seems to envisage that registration will occur”. (per Baker J. at para 11).

72. Baker J. held that the burden lies on the objector to sustain the grounds of objection advanced and that the decision must be in favour of registration unless one of those grounds of objection is sustained. She further held that an objector “must do more than raise a hypothetical or formal ground of objection” (per Baker J. at para. 12). I accept this as a correct statement of the law and I have applied it in determining this application.

73. The burden, therefore, lies on PK, as the objector, to establish, according to the normal civil standard of proof, namely the balance of probabilities, the matters on which he relies to sustain his various grounds of objection. In attempting to discharge that burden, he is required to do more than raise a “hypothetical” or “formal ground of objection".

74. While I have made certain findings in relation to the grounds of objection advanced by PK earlier when commenting on the evidence, he has reduced the contentions he has advanced, for completeness I set out my principal findings on those grounds of objection below. I should make clear, however, that I have considered all of the objections advanced and the fact that I do not specifically refer to a particular ground of objection below does not mean that I have not considered it in reaching my decision on this application.

75. I first turn to the ground of objection based on the alleged invalidity of the EPA. The main ground advanced by PK was that at the time of the execution of the EPA, the donor lacked mental capacity to execute the instrument. I reject that objection. There is clear evidence from Dr. O’B and also from Ms. T that the donor had the necessary capacity to execute the instrument in late November 2020. There is no persuasive evidence to the contrary. There is no medical evidence to contradict that of Dr. O’B. The documents relied on by PK during the course of the hearing (being the entries in the extracts from the Google Docs document prepared by DK) show that by September 2021, the donor’s dementia had deteriorated but they do not mean that the donor lacked capacity at the time she executed the EPA. The medical evidence is that she did not lack capacity at that stage. I find that evidence and the evidence of Ms. T to be persuasive. PK has, therefore, not discharged the burden that lies on him to establish that the donor lacked capacity at the relevant time. Accordingly, I reject this ground of objection.

76. PK advanced a number of related grounds of objection directed to the alleged invalidity of the EPA. Among those grounds were the circumstances in which the EPA was created. I have referred earlier to the affidavit sworn by Ms. T, the donor's solicitor who advised the donor and was present when the donor executed the instrument. I accept the careful and detailed evidence of Ms. T in all respects. In my view, Ms. T did everything “by the book” in terms of her advice and representation of the donor in relation to the creation of the EPA. Ms. T met with the donor (and her husband) and carefully explained what was involved in an enduring power of attorney, she sent a detailed letter of advice and a draft EPA and then subsequently met with the donor again and explained what was involved in some detail. She witnessed the donor signing the instrument and completed the relevant section of the instrument herself. She then advised the donor as to the necessity to have the relevant section completed by her doctor and by the attorneys. She subsequently received the documentation back. Ms. T arranged for the required notice of execution to be served on the notice parties. Ms. T was not challenged or cross examined on her affidavit. I accept her evidence in its entirety. I do not accept that the instrument was in any way tampered with while it was in the possession of the donor or the attorneys for completion of their section of the document.

77. I reject the suggestion by PK that it was unlikely that the donor (and her husband) would have left the house during the COVID – 19 pandemic to go and meet with Ms. T. The evidence of Ms. T is clearly that they did and that she met with the donor in her office and the donor executed the EPA on 27 November 2020. Any suggestion to the contrary flies in the face of the sworn evidence of Ms. T which I completely accept. There is no sworn evidence to the contrary. I also reject the suggestion that Dr. O’B sought to have the donor sign some document relevant to the EPA in April 2022. The donor signed the EPA on 27 November 2020. She also signed the notices of execution of the EPA to be served on the two notice parties on the same date. She was not required to and did not sign any further document referable to the EPA after that date.

78. I further reject the contention advanced by PK that the donor did not sign the EPA herself. The clear evidence of Ms. T is that the donor did sign the instrument. Any suggestion the contrary is mere conjecture and not supported by any evidence. I accept Ms. T’s evidence that the donor signed the instrument.

79. I also reject the contention by PK that the alleged failure by Ms. T (the donor's solicitor), Mr. W (the attorney solicitor) and Dr. O’B to provide the requested documents to PK invalidated the EPA. As a notice party PK was entitled to be served with certain notices. As I have already concluded, he was served with all of the required notices. Ms. T had duties and obligations of confidentiality to the donor, her client. Mr. W had similar obligations to his clients, the attorneys. Dr. O'B was also subject to a duty of confidentiality to her patient. All of these professionals were in a very difficult position in circumstances where two factions of the donor's children are in dispute with each other as to how the donor should be best cared for in her advancing years. The extent of that difficult position is illustrated by the fact that Dr. O'B was not prepared to swear an affidavit in relation to the application without an order of the court. I can fully understand the difficult position she felt herself to be in and why she needed an order to be made before swearing her affidavit.

80. I reject the contention that the attorneys are unsuitable to be the donor’s attorneys. There is no evidence that they are unsuitable. On the contrary, the most important evidence is that the donor chose DK and CK to be her attorneys and that choice was formalised in the EPA which she executed. A court would be very slow to dislodge the choice of attorneys by a donor acting with capacity and would only do so where there was clear evidence to sustain a claim that the chosen attorneys were unsuitable. There is no such evidence in this case. It is not unusual for there to be disputes and differences between members of a family, particularly a large family such as the family involved in this case, in relation to the care of an elderly parent. However, the fact that these disputes and differences exist does not mean that the attorneys are unsuitable.

81. Nor have I been persuaded that there is any conflict of interest on the part of DK in acting as one of the donor’s attorneys. It is suggested that DK may be an executor under the donor's will. I do not know whether that is the case and no evidence to that effect has been provided. DK has maintained that she is not aware as to whether she has been appointed an executor under her mother’s will. However, even if she is an executor, I agree with Mr. W that that would not disqualify her from acting as an attorney and would not render her unsuitable to be one of the donor’s attorneys.

82. I reject the contention that the commencement of the 2015 Act (as amended) can have any material bearing on the registration of the EPA. Once the EPA is valid, the instrument must be registered, unless one or more of the grounds of objection are sustained.

83. I reject the contention that fraud or undue pressure was used to induce the donor to execute the EPA. In fairness, PK did not press the allegation of fraud. I should make clear however that there is no evidence whatsoever that the donor was induced to create the EPA by fraud on the part of any other person. There is also no evidence that she was induced to do so by undue pressure on the part of any other person. The EPA was executed on 27 November 2020. There is no evidence whatsoever of any undue pressure being placed on the donor to execute the instrument. Ms. T completed section D of the document confirming that she had no reason to believe that the document was being executed by the donor as a result of a fraud or undue pressure. She confirmed on affidavit that she was “unequivocally satisfied that… [the donor] was acting freely, voluntarily and without fraud or undue pressure”. There is no evidence to contradict that averment. I accept Ms. T’s evidence in its entirety.

10. Conclusions

84. According, I reject all of the grounds of objection advanced by PK (with the support of a number of his siblings). I am, therefore, required to register the EPA under s. 10 of the 1996 Act. There was a minor glitch in the EPA in that the date on which CK, one of the attorneys, signed Part C was not inserted in the document. Mr. W confirmed in his affidavit sworn on 8 October 2024 that CK signed the document on 29 December 2020 and that it was an omission that she did not date it at that time. I accept that evidence. I am satisfied that the failure to include a date in that part of section E of the EPA is “immaterial” and that I should treat the instrument as being sufficient in point of form and expression for the purpose of s. 10(5)(a) of the 1996 Act. I will, therefore, direct that the EPA be registered in accordance with s. 10(1) and s. 10(5)(a).

85. In the event that I am wrong in concluding that the failure to include a date is immaterial, I would nonetheless be prepared to register the EPA under the provisions of s. 10(5)(b) of the 1996 Act. I confirm that I am satisfied of the following matters for the purpose of that provision, namely:

(i) that the donor intended the power to be effective during any period of mental incapacity on her part;

(ii) that the EPA was not executed as a result of any fraud or undue pressure;

(iii) that the attorneys are suitable to be the donor’s attorneys; and

(iv) that is desirable in the interest of justice to register the EPA.

11. Closing Observation

86. Finally, I want to reiterate some observations made earlier in this judgment. I am satisfied that both factions of the siblings in this family have the best interests of their mother, the donor, at heart and that that is what has motivated them in advancing their respective positions in relation to the registration of the EPA. The parties must now accept that it was the donor's choice to execute the EPA and that she chose the attorneys to be her attorneys. She also provided for her husband (JK) and one of her sons, PK, to be the notice parties. The fact that she chose PK to be one of the notice parties shows how highly the donor regarded him.

87. While I have concluded that the EPA must be registered, that is unlikely to lead to an immediate resolution of all disputes and differences between the different branches of the family. I would strongly advise that the parties agree to the appointment of a mediator to seek to resolve the wider disputes and differences between them concerning the ongoing care and well-being of their mother. They would be much better spent focusing their time and attention on their mother rather than fighting with each other as to how she should be cared for. A mediator may well be able to help them sort out those disputes and differences. Disputes which may appear intractable are very often capable of resolution. This may be such a dispute. Resolution of their differences would benefit everyone but most particularly it would benefit the donor. One very positive feature of this case is that all parties are very happy with, what they all regard as, the excellent care which the donor is receiving from all the staff in the community hospital and that, in a sense, is the most important point on which to conclude the judgment.

88. This judgment is being delivered electronically. I will list the matter for the purpose of making final orders on the application on a date and time which will be notified to the parties.