As one of the pair of executors for my sister-in-law’s will, I find myself sharing this role with a relative. However, my sister-in-law, still alive but with a dubious mental state, is causing distress to the family due to erratic behaviour, including nocturnal disappearing acts. What would become of my position as executor if she gets a dementia diagnosis, given that her will was established some time ago?
Since the death of her husband, one of her offspring has resided with her, along with their own family, serving as caregiver. The offspring believe it’s time for her to transition into a nursing home, but I am wary about how this pertains to my role as executor.
Do I have any legal obligations while she is still alive, regardless of whether she is mentally capable or possibly has dementia? Another issue that worries me is the funding needed for nursing home care, and the implications of the Fair Deal scheme. Is selling the house necessary to supply the 22.5% contribution from her wealth?
Could the Fair Deal authorities insist on selling the property irrespective of her son and their family residing there? The son, who is also the carer, has presented an idea to delay any claims until they pass away or when their family vacates the premises. Is it feasible to transfer the house ownership to the carer to prevent it from being apprehended as an asset?
What would be my standing as executor if the other executor and I have differing opinions, particularly if they agree with the family carer? If my sister-in-law becomes certified as mentally incapable, can they secure a power of attorney on her behalf? Could any authorised attorney alter the will that was already instituted when she was mentally sound? If feasible, what happens to the standing of the original executors?
Funds for legal help or for loans are limited among her family, and I, too, am restricted as a pensioner.
However, despite your many questions, the principal answer remains relatively simple. You are an executor of this lady’s estate as per her will, which only comes into effect upon her death.
At this juncture, you are presented with the options of either accepting to take the role, preserving or relinquishing your right. Preserving your right keeps the door open for you to become actively involved later, while relinquishing it signifies your permanent withdrawal from the role with no further involvement to it. It’s pertinent to note that both options involve interacting with the court following the demise of the person who names you as the executor in their will.
However, such matters are future concerns. Until the death of this person, you have no duties in their affairs simply because you’re an executor to their estate. Regardless of her mental health, be it dementia or not, or the decision made by her or her family about long-term health care in a nursing home or whether she decides to assign power of attorney to someone (if she is capable of doing so), it has no effect on your position or concerns you as an executor.
With the apparent complexity in this lady’s life at present, this may offer you some comfort. Obviously, you have known her for many years and you’re concerned about her well-being, which is quite different from having a legal responsibility because you’re named as one of her executors.
From a practical viewpoint, the primary decision-makers regarding this lady’s care and welfare will be her immediate family or someone else chosen as an attorney via power of attorney, should she have one. You don’t have an official role in all of this, although you may have strong opinions about it.
This also applies to the other executor, who may have influence in the woman’s affairs separately due to their familial connection.
To alleviate any further concerns, it might be beneficial to give your attention to the broader concerns you’ve raised. The most significant is the concept of power of attorney. As you’ve indicated, her family believes she is behaving abnormally and might not be in full control of her mental capabilities, leading them to consider long-term care.
Should this be the scenario, her ability to sign an enduring power of attorney is non-existent at this point. A doctor and a lawyer would have to be convinced that she understands the whole process, has the mental capacity to make such a decision and isn’t under any kind of coercion.
Even without a formal diagnosis of dementia or a similar condition, the likelihood of her doctor approving any process that might be confusing or beyond her understanding is minimal.
The current situation is even more challenging as there is ongoing disagreement between the Law Society and the Decision Support Service – the government organisation overseeing power of attorney procedures – over recent changes to the process.
There’s a major concern amongst lawyers in that they could become liable for completing power of attorney documents for customers they aren’t familiar with, or when they can’t confidently ascertain that no undue force was exerted. This is especially troublesome given that a key reason for the revised process was to address instances of elder abuse amongst various other issues.
The upshot of the dispute is that it’s proving increasingly hard to find lawyers willing to sign the necessary forms for enduring power of attorney to be granted. This delay means that individuals on the brink of cognitive clarity may not be mentally capable by the time they are ready to fill out the documents.
In the absence of such powers, the decision about whether she should be moved to a nursing home will either be hers to make or it will be assigned to an individual appointed by the Decision Support Service, following a court order.
If it’s decided she should go to a nursing home, an application to the Fair Deal for financial aid towards the cost of care is almost a given. If approved, a contribution based on her home’s value is expected – that’s how it works.
The contribution, as you noted, could be as much as 22.5% of the home’s value – 7.5% per annum for a maximum of three years. This should be paid within a year of her passing, unless the HSE allows a postponement, or within six months after its sale.
Deferral conditions are very specific and it’s uncertain that her family’s perspective – that they could obtain a deferral due to them residing with her and acting as her carers – would be feasible.
If the deceased woman’s estate lacks sufficient liquid assets to cover the bill demanded by the Revenue on behalf of the HSE, it may result in the necessitated sale of her property. As the executor, you would be in the position to oversee this transaction when it takes place.
Under the Fair Deal policy, a five-year clause discourages transferring the home’s ownership to another family member to escape the liability.
Any changes to her will can only be performed by her. The question of her competence to alter her intentions, including the distribution of her assets posthumously and her preferred executors, rests entirely on her. If she is deemed mentally incapable of understanding her actions in delegating power of attorney, it is reasonable to conclude that she would lack the ability to alter her will as well.
It is crucial to mention that her will cannot be modified by anybody else, be it due to familial proximity, caretaking responsibility or bearing formal authority with enduring power of attorney. Given these conditions, her present will is likely to remain intact until her demise.
You showcased apprehension about potential legal expenses. At present, you are not responsible for legal costs. Serving as executor ensures that any legitimate legal expenses will be borne by her estate, following her death and when you become active in the role.
Any expenditure associated with setting up a power of attorney, or attempted but thwarted by medical or legal obstacles, will be borne by her directly. Her family shouldn’t worry about incurring legal fees unless they challenge a will or a decision taken by the Decision Support Service. If such a circumstance does arise, their financial capability for legal pursuits would be their responsibility.
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