Marriage, pre-nups and Wills – how life goes on under the Court of Protection
People who become the subject of Court of Protection proceedings often do so at a time when their life has been impacted by a significant event, or when they are going through substantial change. One of the clear principles of the Court, and of the framework of the Mental Capacity Act 2005, is that capacity to make certain decisions can fluctuate and indeed be regained.
The recent case of PBM v TGT & X Local Authority (2019) EWCOP 6 is an excellent example of this. PBM, now in his mid-twenties, acquired a brain injury (along with physical impairments) as an infant. He was awarded significant compensation currently held by TGT, a solicitor and his Property and Financial Affairs Deputy. Expert medical evidence at the time indicated that he would lack capacity to manage his affairs upon reaching adulthood. In reality he has recovered to a greater extent than anticipated.
PBM has been in a relationship for a number of years with his fiancée whom he had planned to marry before the Deputy applied to the court for an interim declaration that he lacked capacity to marry. Understandably PBM was upset by this action. Matters moved on and, in January 2019, Francis J was asked to decide whether PBM had capacity to:
- get married;
- make a will;
- enter into a pre-nuptial agreement; and
- decide whether he ought to be told the size of his estate.
Happily, by the time of the hearing the parties were in agreement on the evidence that PBM had capacity get married, enter into a pre-nuptial agreement and make a Will. Francis J agreed, finding that PBM met the test of capacity to marry as recorded in Sheffield City Council v E (2004) EWHC 2802 (Fam). He also found that PBM had testamentary capacity, irrespective of whether the test under the Mental Capacity Act 2005 (‘MCA’) or the rule in Banks v Goodfellow (1870) LR5 QB 549 was applied.
Whether PBM had capacity to enter into a pre-nuptial agreement was linked, to a degree, to whether he could decide to be told the size of his estate. A workable pre-nuptial agreement generally requires disclosure of assets, which PBM could not do if he was not in possession of that information himself. The judge sought to disentangle these matters, stating that “it is obviously desirable (from the pre-nuptial agreement perspective) that he should know” but it is not “impossible to have a valid prenuptial agreement without disclosure”. Looking at capacity to enter into a pre-nuptial agreement the judge found that PBM was able to understand, retain, use and weigh the information relevant to that decision and recognised the importance of obtaining professional support in making the decision. He therefore had capacity in that regard.
The final question, whether PBM had capacity to decide whether he should be told the extent of his assets, lead the judge to the case of EXB v FDZ and others (2018) EWHC 3456 (QB). Regular readers of the blog will recognize that case from our post Can a Deputy Withhold Knowledge of the Amount of a Personal Injury Settlement from P?. There was some debate as to the wording of this question but ultimately, Francis J found that PBM had the necessary capacity. The judge was careful to clarify that he had not made that conclusion because of the finding of the capacity to enter into a pre-nuptial agreement, but as a standalone decision. However, he also stated that if capacity was not present it would nevertheless be in PBM’s best interests to be provided with that information.
It is commendable that Francis J took care to prevent the decisions regarding the pre-nuptial agreement and knowledge of the size of PBM’s estate to be decisive of one another. Capacity is, as practitioners know, decision specific. Having capacity to make one decision does not obviate the need to consider capacity on another decision.
This judgement also offers an insight into the work of a professional Deputy, offering the following takeaways:
- A Property and Financial Affairs Deputy can have occasion to intervene in other areas of P’s life. Marriage is a prime example. Francis J made is clear that “the Deputy, having legitimate concerns, had a responsibility to take the actions that she did”.
- An individual’s financial vulnerability does not mean in itself that they lack capacity to manage their financial affairs. PBM had previously been preyed upon by a another man, and lost money as a result, but the judge said that this “is not necessarily evidence of his inability to manage his affairs”.
- Having capacity to make one decision with a financial facet does not mean having capacity to manage property and financial affairs in general. Francis J stated that “entering into a pre-nuptial agreement is a one off event, albeit that the effect… is always binding”. Managing general affairs, as he said, is a continuum.