The High Court found that a son’s power of attorney does not give him the authority to make personal care decisions for his 90 year old father, including where he should live. This decision came after a dispute arose between the son and the daughter, who disagreed with a decision to remove the father from a nursing home according to his wishes.
The case concerns the father, who’s cognitive and physical abilities began to decline in early 2019. Later that year his two children became concerned about his ability to live independently and arranged for a carer to care for him at his home. The father expressed resistance to the carer and ultimately refused them entry to his home. For almost a year after that the two children, provided support for their father in his home. After multiple hospitalisations, he received medical advice that it was in his best interest to be moved to a nursing home. After a year of being in the home the children agreed to fulfil the father’s wishes to be discharged home, after a comprehensive medical assessment. However, the father refused to undergo such an assessment and the GP respected the father’s decision.
The daughter wished for her father to return home regardless but the brother refused to allow it without the assessment. This led to the daughter making a complaint under the Assisted Decision-making Act 2015 in regards to her brother’s role as acting attorney, which is to be decided at a later date by the Decision Support Service.
In the meantime the daughter brought the matter of whether the power of attorney had the authority to make personal care decisions for her father, including decisions on where he should live to the High Court. The Court said that the power of attorney granted to the son was in relation to his father’s property an affairs, which means business or financial affairs in this context. The court further made reference to the Power of Attorney Act 1996 which claims that power may confer authority to make any specified personal care decisions. However, there were no provisions on decisions concerning where one could live or with whom they could live.
As such the High Court made an order that it was not within the son’s power of attorney to make personal care decisions, including where the father should be able to live.