Karen Walsh offers advice to our readers. This week she helps someone look for a solution to an old farmer who won't take his families help.
My father is in his 80s, and has been farming full time since he was 16.
He loves farming and since my mother died a number of years ago, I honestly think it’s all that keeps him going.
Unfortunately, of late, age has been catching up on him.
I and the rest of the family are worried.
If I’m honest, I don’t think he is mentally or physically up to the work he is doing.
All us children work away from home, and haven’t been involved with the farm.
He never encouraged us to be on the farm. He’s always been able to manage on his own until recently.
He’s an extremely stubborn man and wouldn’t take our help anyway.
On a recent visit home, my sister found the place in an awful state. There were dead animals in the yard and the field, and there didn’t appear to be enough feed on the farm for the stock, and that isn’t the biggest problem.
The other day, I got a call from a neighbour, saying he nearly mowed down his wife and kids with the tractor recently. My father said he didn’t see them on the road at all. I’m afraid he is going to hurt himself or someone else. He’s extremely stubborn and has no intention of giving up or even slowing down. What can we do?
This is obviously an extremely difficult and stressful situation, and you are clearly very worried about your father.
The first thing that you need to do is try to talk with him. You should arrange a family meeting, and organise for all of your siblings to call to him together, and advise him that you are very concerned and worried about him, and that you only have his best interests at heart.
You should consider encouraging him to be assessed by a doctor, and if a doctor certifies that he is of sound mind, he should consider creating an enduring power of attorney.
An enduring power of attorney (EPA) is a legal document which can only take effect in the event that the person becomes mentally incapacitated. The person creating the EPA is known as the donor, and in the event of your father becoming incapacitated, the power to deal with his money and assets transfers to his nominated attorney, but only becomes operative if your father becomes incapable of looking after his affairs, and it continues in force until death.
An EPA can only be created when an individual is of good mental health and is, at that time, of sound mind.
In the event of an individual becoming mentally incapable without having this document in place, their family would not be able to deal with their financial affairs or property until the death of the individual, or upon them being made a ward of court.
An application to be made a ward of court is an extremely costly and time consuming process, and could significantly erode any assets involved. Executing an EPA can represent enormous value for money compared with the cost of making someone a ward of court.
An EPA is a powerful and important legal document, and one should seek advice from a legal advisor with experience of preparing them.
The process of creating an enduring power of attorney is a relatively straight forward one and is a highly valuable device in often very difficult circumstances.
If a doctor is not in a position to certify that he is of sound mind, then you can make an application to the High Court to have him made a Ward of Court.
You mentioned that on a recent visit home your sister found the farm in an awful state. This is very worrying, obviously, and you mentioned that there were dead animals in the yard and field, and that there didn’t appear to be enough feed on the farm for the stock.
This could have very serious consequences for your father, as there are very strict laws in relation to animal welfare and health.
Your father could face criminal prosecution for breach of the legislation.
The Animal Health and Welfare Act 2013 includes provision for increased powers for authorised officers to investigate complaints of animal cruelty, and impose strict penalties. In addition, the court has power to order that the person be disqualified from owning an animal for their lifetime.
Also you mention that you received a call from a neighbour saying that your father nearly mowed down his wife and kids with the tractor recently.
This is most serious. Perhaps your father should see an optician to check his eyesight.
It sounds like he should not be driving at all, as he appears to be a danger to himself and others on the road. If he is starting to suffer with the early stage of dementia, he should not be driving at all. If he is involved in an accident that causes injury or death to someone, he could face a criminal prosecution and also a civil claim for damages.
You need to advise him that he needs to consider thinking of a succession plan.
Perhaps he could rent the land? Perhaps he could sell the land, if you and your siblings are not interested in farming. He also should ensure that he has made a valid up-to-date will.
The best thing to do is speak with your father and relay your concerns and worries and fears to him.
Obviously, you cannot make him do anything, but approach the conversation from the point of view that you genuinely care for him and want to make sure he is safe, and that he needs to consider a succession plan.
Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.