“Once Facial Validity Is Shown, the Objector Must Prove Otherwise” – Barniville P clarifies the Burden in EPA Objections and the Treatment of Minor Formal Flaws
Commentary on DK & CK v PK (Approved) [2025] IEHC 344

1. Introduction

The High Court decision of Barniville P in DK & Anor v PK confronts a sadly familiar family conflict: whether an Enduring Power of Attorney (“EPA”) executed by an elderly parent should be registered despite objections by one child and the support of others. Although the factual matrix is emotive, the judgment establishes (and consolidates) important legal points that will guide future EPA litigation:

• The objector bears the evidential and legal burden of proving any ground under s.10(3) of the Powers of Attorney Act 1996 (“the 1996 Act”).
• Where the instrument is prima facie compliant, “hypothetical or formal” objections are insufficient.
• Minor omissions (here, a missing date beside an attorney’s signature) are “immaterial” within s.10(5)(a); even if material, the court may still register under s.10(5)(b).
• The Assisted Decision-Making (Capacity) Act 2015 (“ADMC Act”) does not displace valid EPAs created under the 1996 Act.

2. Summary of the Judgment

Barniville P ordered immediate registration of the EPA executed by RK in November 2020, holding that:

• RK had capacity at the time of execution, as confirmed by her solicitor and GP.
• All statutory formalities under the 1996 Act, the 1996 Regulations and Order 129 RSC were met; the missing date was inconsequential.
• No evidence existed of fraud, undue pressure, conflict of interest or attorney unsuitability.
• The donor is now “mentally incapable”, triggering the attorneys’ statutory duty to seek registration.
• Objector PK failed to discharge the burden on any ground under s.10(3).

3. Background of the Case

RK, now in her 80s with severe Alzheimer’s, executed an EPA on 27 November 2020 appointing two daughters (DK & CK) as joint attorneys. Notice parties were her husband JK and son PK. When the attorneys sought registration (after medical confirmation of RK’s incapacity), PK objected, alleging lack of capacity at creation, visual impairment, document tampering, conflict of interest and procedural defects. Family members lined up on both sides, and the matter arrived before the President of the High Court. Neither side had legal representation at hearing.

4. Analysis

4.1 Precedents Cited

1. Fitzpatrick v FK [2008] IEHC 104, [2009] 2 IR 7 – Laffoy J set out the “functional” or decision-specific approach to mental capacity. Barniville P explicitly adopts this interpretation as consistent with s.3 ADMC Act.
2. Re SCR [2015] IEHC 308 – Baker J held that a facially valid EPA is presumed valid; the objector bears the burden to upset that presumption. Barniville P “accepts this as a correct statement of the law” and deploys it centrally.
3. Statutory references:
   • Powers of Attorney Act 1996 ss.4, 9, 10
   • Enduring Power of Attorney Regulations 1996 (S.I. 196/1996)
   • Order 129 RSC (court procedure)
   • Assisted Decision-Making (Capacity) Act 2015 (cited but distinguished)

4.2 Legal Reasoning

The President’s reasoning unfolds in five inter-locking steps:

1. Mandatory Registration Duty – Once an attorney “has reason to believe” the donor is mentally incapable (s.9(1)), an application is compulsory.
2. Facial Compliance + Presumption of Validity – The EPA adopted the prescribed form, contained the solicitor’s and medical practitioner’s certificates, and notices were duly served. Relying on Re SCR, Barniville P presumes validity unless an objector proves otherwise.
3. Burden & Standard of Proof – The objector must establish grounds on the balance of probabilities; speculative assertions do not suffice. Evidence from professionals (solicitor Ms T and GP Dr O’B) was “careful and detailed”, unchallenged by competing medical testimony.
4. Assessment of Each Ground under s.10(3)
   • (a) Not valid? – No: capacity proven, formalities complied.
   • (b) No longer valid? – No: ADMC Act does not revoke earlier EPAs.
   • (c) Donor not mentally incapable? – Conceded incapacity.
   • (d) Attorneys unsuitable? – No evidence; donor’s choice respected.
   • (e) Fraud/undue influence? – Entirely unsubstantiated.
5. Minor Defect Doctrine – The missing date beside CK’s signature is “immaterial” under s.10(5)(a); alternatively, discretion exists under s.10(5)(b) where justice so requires.

4.3 Potential Impact

• The judgment is now the leading Irish authority confirming that Re SCR’s burden-of-proof principle is binding since delivered by the President of the High Court.
• Practitioners can rely on the court’s tolerant approach to minor clerical lapses in EPA forms, reducing unnecessary satellite litigation.
• Objects ers must assemble cogent medical or documentary evidence early; mere suspicion will not suffice.
• The ruling indirectly supports the continued relevance of the 1996 Act post-ADMC Act, ensuring thousands of pre-2016 EPAs remain operative.
• By urging mediation, Barniville P sets a pragmatic template for judges to encourage alternative dispute resolution in family capacity disputes.

5. Complex Concepts Simplified

Enduring Power of Attorney (EPA)

A legal document in which a person (“donor”) appoints someone (“attorney”) to make decisions about property and affairs after the donor loses mental capacity. It must follow a statutory form and only becomes effective when registered with the High Court.

Registration

The administrative-judicial process that confirms the EPA’s validity once the donor is (or is becoming) mentally incapable. Without registration the attorney’s authority is dormant.

s.10(3) Grounds of Objection

Five exclusive reasons a notice party may invoke to stop registration: invalid power, lapsed power, donor not incapable, unsuitable attorney, fraud/undue influence.

Burden of Proof

The legal responsibility to prove a fact. Here, the objector carries it; the EPA enjoys a presumption of validity once it looks right on its face.

“Immaterial” Defect

A small mistake (e.g., missing date) that does not undermine the document’s substance. s.10(5)(a) lets the court overlook such slips.

6. Conclusion

DK & Anor v PK crystallises critical procedural principles for Ireland’s enduring-power regime. It underscores judicial respect for a donor’s autonomy expressed while capacitated, resists efforts to derail an EPA through conjecture, and reassures practitioners that minor non-prejudicial errors will not defeat an otherwise sound instrument. Beyond its doctrinal contributions, the decision reminds families and professionals alike that timely legal planning, clear communication, and—where conflict arises—mediation, remain the best safeguards for an older person’s dignity and welfare.