Worrying about my responsibility for sister-in-law in declining health

I am one of two executors on my sister-in-law’s will along with a close family member.

While she is still alive, she is now of doubtful capacity of mind. Her family are concerned that she is acting irrationally, including leaving the home in the middle of the night. If she is certified as having dementia, where do I stand as an executor of her will which was made a number of years ago?

One of her children and their family is living with her since her husband died and acts as carer. The woman’s children now feel their mother needs nursing home care. I am, however, concerned about my role in all this as executor of her will.

Is it any real concern on mine? Do I have any statutory role in it while she is still alive, whether she is fully compos mentis or indeed has dementia?

I am also concerned how the cost of keeping her in a nursing home is covered and what is the situation regarding the Fair Deal scheme. Will the house have to be sold to cover the 22.5 per cent contribution from the asset?

Would the Fair Deal guys force the sale of the house irrespective of the fact that the son and family are living in it? The family carer has suggested they might defer the claim until they themselves subsequently die or their family all move out?

Can the house be put in the name of her family member and carer while the mother is alive to avoid it being counted as an asset of the mother?

Where do I stand as executor if the other executor disagrees with me and agrees with the family carer?

If the mother is now declared non-compos mentis, can a power of attorney be obtained for her? As part of that process, could any attorney under such a power change the will which was made when she was in full possession of her faculties? If so, where do the original executors stand?

Her family would not have any cash to pay legal fees nor much borrowing power either. Nor do I have much spare cash being a pensioner in my eighties.

Ms S.D.

That’s a lot of questions but, if it gives you peace of mind, the key answer is really fairly straightforward. You are an executor of this woman’s estate under her will. That responsibility only becomes an issue when the woman has died.

At that point, you can either agree to act in that capacity, reserve your right or renounce your right. Reserving the right holds open the possibility of becoming actively engaged down the line whereas renouncing the right means you step back permanently from the role and have nothing further to do with it.

Both require interaction with the court after the death of the person in whose will you are listed as executor.

But that is all down the line. Until then – ie until this person dies – you have no role in their affairs by virtue of being an executor to their estate.

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So whether she has dementia or not, whether she and/or her family decide she needs long-term nursing home care or whether she does or does not decide to grant power of attorney to anyone (or whether she is competent to do so) is of no impact to or concern of yours in your role as executor.

As things seem to be a little complicated right now in this woman’s life, that will probably come as some reassurance to you. Clearly, you know this person a long time and have a concern for her welfare but that is a very different thing to having any formal role as a result of your being named as one of her executors.

And, at a practical level, the people inevitably making decisions about this woman’s care and welfare will be her close family, or any other person nominated as an attorney under a power of attorney if she does already have one of these. You really have no formal role in all of that even if you might have strong views on the subject.

The same applies for the other executor although they may have a say in this woman’s affairs separately by virtue of being a close family member.

For further peace of mind, it is perhaps worth making some comment on the wider issues that you raised.

Chief among these really is the notion of power of attorney. You say that her family feels that she is acting out of character and may no longer be in full possession of her mental faculties. This appears to be the reason they feel she or they need to consider long-term care.

If that is the case, there is no chance of her being allowed to sign an enduring power of attorney at this stage. A doctor and a solicitor would need variously to be satisfied that she understood the process, was of sound mind to make such a judgment and was not acting under any duress.

Even if not yet in receipt of a formal diagnosis of dementia or similar condition, it is unlikely her doctor would be happy to allow that process to proceed if there was any question of her being confused or otherwise not fully aware of what she was doing.

On the legal side, it is even more difficult right now as the Law Society and the Decision Support Service – the State agency supervising the power of attorney process – are at loggerheads over the process under new arrangements put in place last year.

Solicitors are particularly concerned they could be held to account for completing power of attorney paperwork for clients whom they may not know at all or where they are not comfortable that the current process allows them to confirm with any certainty that no undue pressure or duress was applied.

This is a problem as the updated process was put in place specifically to address the issue of elder abuse among other things.

Anyway, the result of the dispute is that it is proving very difficult to get solicitors to sign the forms required for enduring power of attorney to be granted and, obviously, that delay means that people who may be on the cusp of awareness may fall the wrong side of that line by the time they are eventually in a position to file the paperwork.

Without such a power, the decision on whether this woman goes into nursing home care will be hers or that of someone appointed by the Decision Support Service at the behest of a court.

If she goes into nursing home care, a Fair Deal application for financial support to subsidise the cost of that care will certainly be considered. And, if sanctioned, that would require a contribution from her on the basis of the value of her home. That is the way the system works.

The contribution, as you note, is up to 22.5 per cent of the value of the home – 7.5 per cent per year for a maximum of three years. It is payable within a year of her death unless the HSE agrees to a deferral, or six months after it is sold.

Grounds for deferral are very particular and I would not be that confident of her family’s view that they would be able to secure a deferral simply by virtue of them having lived there and acted as her carers.

If the woman’s estate cannot meet the bill, pursued by the Revenue on behalf of the HSE, from the liquid assets of the woman’s estate, the property may need to be sold. If it comes to that, it might be an issue for you as executor at that time.

There is a five-year clawback provision under Fair Deal, so there is no question of this woman’s home being put into the name of other family members to “dodge” the Fair Deal liability.

In relation to amending her will, only she can do this. If she was found to be competent to update her will, it would be her choice whether to do so and that includes whether to change how she is allocating her assets after her death and the people she would like to act as executor.

But if she is no longer found to have the mental capacity to understand what she is doing in relation to power of attorney, it follows that the same judgment would be made in relation to her ability to amend her will.

In any case, no other person can amend her will on her behalf – either because they are close family and/or carers, or because they are acting under formal powers under an enduring power of attorney. So, in the circumstances outlined, whatever will she has now is likely to be the will that will remain in force until her death.

Finally, you are concerned about any legal costs. There is no question of you being liable for legal costs at this stage and, as executor, all reasonable legal costs will be covered by her estate if it comes to a time after she dies that you are acting in that role.

Any costs she incurs in drawing up a power of attorney – or trying to but falling down at the medical or legal hurdle – would be costs for which she is liable. Her family should not really find themselves in a position where they face legal costs unless they are challenging a will or some decision of the Decision Support Service. If they do get to that point, their ability to fund legal action would be a matter for them.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice