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High Court, in proceedings determining whether the respondent attorney has authority to make personal care decisions for the donor, who is 90 years old currently living in a care home, determines that the meaning and effect of the instrument does not give the respondent the authority to make personal care decisions, including in particular where the donor should live, on the grounds, inter alia, that the instrument is silent as to a personal care decision and where the instrument is predicated on the assumption that the donor resides at his home.
Power of attorney - whether respondent attorney has authority to make personal care decisions for donor - including where donor should live - application under s.12(2)(a) of the Powers of Attorney Act 1996 - power of attorney executed by a donor - donor 90 years of age - attorney son of donor - brother of applicant - applicant donor's daughter - donor in nursing home - enduring power of attorney executed in 2016 - respondent noticed decline in donor's cognitive physical activities in 2019 - respondent concerned about the donor’s ability to live independently - arranged for care at home - respondent subsequently resistant to carers at home - respondent and applicant then looked after donor - donor's condition regressed - medical advice concerned of living at home and suggested residential nursing care - applicant seeking to have donor brought home - respondent wants full comprehensive assessment - meaning or effect of power of attorney - attorney nominated by donor - court ultimately of view instrument does not confer power of attorney ability to make personal care decisions - "subject to conditions and restrictions" - instrument sufficiently clear in reflecting wishes of donor to remain at home - not possible to read in option of moving donor to full time care - court notes emphasis on personal autonomy over best interests.
Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.
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