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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> DMM, Re (Alzheimer's : power of attorney) [2017] EWCOP 32 (26 July 2017) URL: https://www.bailii.org/ew/cases/EWCOP/2017/32.html Cite as: [2017] EWCOP 32 |
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Important notice
This judgement was delivered in Private. The judge has given leave this version of the judgement to be published on condition that (irrespective of what is contained in the judgement) in any published version of the judgement they anonymity of the members of the family must be strictly preserved. All persons including representatives of the media must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Neutral Citation Number: [2017] EWCOP 32
IN THE COURT OF PROTECTION
Case No: 13095074
IN THE MATTER OF DMM
26 July 2017
Before:
His Honour Judge Nicholas R. Marston
B E T W E E N:-
EJ (as attorney for DMM)
Applicant
-and-
SD
First Respondent
Parties:
For Applicant: Alex Troup, St John's Chambers (Counsel), Kerry Morgan-Gould, Ashfords (Solicitor)
For First Respondent: Abigail Bond, St John's Chambers (Counsel), Holly Mieville-Hawkins, Enable Law (Solicitor)
DMM was not a party at this point in the proceedings.
JUDGEMENT
See also: [2017] EWCOP 33
I heard this case on 14 July 2017 and after submissions I reserved Judgment, this is that Judgment which will be sent to the parties and then handed down at an agreed date. I will first set out the factual background, then the relevant law and then rule on the issues I have been requested to rule on.
1. DMM is a
retired insurance broker in his mid-80s, he lives in the South West of England.
He has been married
once, that
marriage
ended in divorce many years ago and he
has three adult daughters from it. He has cohabited with SD, a lady in her 70s
for some 20 years or more in the South West of England. On 11 December 2013 he
executed a will which gives SD two thirds of his pension, a legacy of £300,000
and the right to reside at his property for two years after his death, the
remainder of his estate being divided between his three daughters. In 2007 DMM
executed an enduring power of attorney (EPA) appointing the Applicant, EJ, one
of his daughters, as his sole attorney for property and financial affairs. In
2013 he executed a lasting power of attorney for health and personal welfare in
her favour.
2. DMM is now
suffering from Alzheimer's
disease.
This diagnosis is accepted by the
parties. In November 2016 DMM was taken by SD to have a
capacity
assessment to
revoke his power of attorney, to make a new power of attorney and to
marry.
A
report commissioned by SD from Dr Bailey, a consultant psychiatrist, concluded
DMM did not have
capacity
on the power of attorney issue but did have
capacity
to
marry.
EJ then entered a caveat at a Registery Office in the South West of
England under s29(1) of the
Marriage
Act 1949 in order to prevent any
marriage
between DMM and SD taking place. She also commissioned a report from Mr
Farmer, an independent mental
capacity
assessor who met DMM and reported on 16
June 2017 into DMM's
capacity
to
marry
and his testamentary
capacity.
His
conclusion was that DMM lacked
capacity
in both respects. I will examine these
reports in more detail in the course of this Judgment. The Registery Office
indicated that they would consider the issue and if they concluded DMM had
capacity
he could
marry
SD almost immediately.
3. These
proceedings then started with an application under Part 4A of the Family Law
Act 1996. The case came before His Honour Judge Wildblood
on 26 June 2017 and
he transferred it to the Court of Protection and granted an interim injunction
without notice stopping the proposed
marriage.
On the return date, 4 July 2017
a consent order was made setting u this preliminary issue hearing before me and
SD gave an undertaking in similar terms to the injunction until the preliminary
issue is decided.
4. What is the issue I have to decide and why is it important to the parties? Paragraph 1 of the consent order of 4 July 2017 reads:
"A hearing shall be listed on 14 July
2017…to determine the following preliminary issue, namely whether the legal
test for whether a person has capacity
to
marry
includes a requirement that the
person should be able to understand, retain, use and weigh information as to
the reasonably foreseeable financial consequences of a
marriage,
including that
the
marriage
would automatically revoke the person's will."
It is agreed in this case that the effect of
the marriage
of DMM to SD will automatically revoke the will that he previously
made on 11 December 2013 by reason of the provisions of s18(1) of the Wills Act
1837. DMM has assets of about £125,000 in cash, pictures worth about £40,000
and his property in the South West of England valued at £1,500,000 to
£1,600,000. Under the rules of intestacy, SD would have a statutory legacy of
£250,000, his chattels and half the balance of the estate, about £950-990,000
out of the assets with the rest divided between the three daughters. So the effect
on the overall financial position on DMM's death of his
marriage
is very
significant to both SD and DMM's children.
5. Does DMM
understand the effect of his proposed marriage
on the will? If he does, the
whole issue is decided on a factual basis and I don't need to consider the
question I am asked to consider. There are three witnesses as to
capacity
to
marry.
Dr Bailey who can be found on this issue at page 81 in the bundle. He
says this:
"in relation to this specific question
the bar of cognitive ability required to make this decision is commonly judged
to be relatively low. DMM was able to understand the nature of marriage
that it
would entail entering into an agreement with another person and that there
would be vows exchanged. He was able to retain this information and
sufficiently weigh it up. He was extremely clear in his decision that he
wished to
marry
SD and that he wanted to do so for many years. I therefore
judge that DMM does have the
capacity
to enter into
marriage."
DMM's GP, Dr Thomas in a short note dated 6 June 2017 at page 110 in the bundle says:
"I have questioned him today at length
and I am satisfied that he understands the implications of the formal marriage
and the implications for other members of his family. I'm satisfied he has the
capacity
to decide to get
married."
It would seem that neither doctor raised the
issue of the effect on the will and the financial arrangements currently in
place. Mr Farmer did raise it. At 4.22 on page 94 the initial response by DMM
is that marriage
would mean him leaving more money to SD and less to his
daughters. He is then reminded of his current will and says he does not think
that should change. He was then told the implications of the
marriage,
Mr
Farmer then says:
"I then asked DMM how he thought that would affect his current provision in his will but DMM was unable to recall what provision had been made in his will nor could he recall the value of his estate. DMM was then unable to quantify or recall information that had been provided for him."
There was then more discussion and then at
5.5 to 5.8 Mr Farmer sets out his analysis of the capacity
to
marry
issue:
"5.5 Capacity
to get
married
– It is
evident that DMM is able to understand the nature and purpose of
marriage
including both the existence of moral and financial obligations between each
party. It is also evidence that DMM meets the criteria for
capacity
to engage
in sexual relationships.
5.6 However, during our discussion it became
evidence that DMM has a lack of understanding of the actual financial
implication that marrying
SD will have in terms of the effect upon his will and
therefore any provision that he may wish to make for others.
5.7 Despite being told of the actual
financial implications of marriage
DMM was unable to retain information for any
amount of time and certainly not for the duration of the discussion taking
place.
5.8 This inability to retain this information
means that DMM is not able to weigh up and use this as part of the
decision-making process and so therefore in my professional opinion he fails to
meet the criteria for capacity
to
marry
as outlined in the ruling in Sheffield
City v E and another [2004] EWHC 2808 (Fam) and L B of Southwark v KA [2016] EWCOP 20 "
There is therefore clear evidence that if any
understanding of the effect of remarriage on the will and the financial
position of the parties is necessary to have capacity
to
marry,
DMM may not
have it. Is such knowledge necessary? This is of course the issue I am asked
to rule on.
6. What is
the legal test for capacity
to
marry?
The issue of
capacity
is set out clearly
in Part 1 of the Mental
Capacity
Act 2005. I bear the principles set out in 1)
and 2) in mind and turn to 3) inability to make decisions.
"3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable:
(a) To understand the information relevant to the decision;
(b) To retain that information;
(c) To use or weigh that information as part of the process of making the decision, or
(d) To communicate his decision"
The next two sections deal with appropriate explanation of the information given to the person and his ability to retain information then
"(4) The information relevant to the decision includes information about the reasonably foreseeable consequences of:
(a) Deciding one way or another, or
(b) Failing to make a decision."
These matters are set out again in the MCA
Code of Practice, see in particular 4.16. That is the structure within which
lack of capacity
in general should be considered. There are a number of cases
that deal with
capacity
to
marry.
Both counsel, to whom I am indebted for the
careful; and cogent way they put their cases, Mr Troup for DMM and Miss Bond
for SD agreed on the relevant authorities which are all in the
"Authorities Bundle". I have read them all, some are more relevant
than others to the facts here though none is directly on the point of the
second marriage
undoing the will as is here the case.
In Sheffield CC v E and another [2004] EWHC 2808 (Fam) Munby J as he then was, held capacity
to
marry
was about the ability
to understand the nature of the
marriage
contract and the duties and
responsibilities attached to
marriage
namely that
marriage
was a contractual
agreement between a man and a woman to live together to love one another to the
exclusion of all others in a relationship of mutual and reciprocal obligations
involving the sharing of a common home and a common domestic life and the right
to enjoy each other's society comfort and assistance. He went on to say that
the contract of
marriage
was a simple one which did not require a high degree
of intelligence to understand. This case is pre the MCA and His Lordship did
not specifically refer to understanding the foreseeable consequences of
marriage.
However, in X v MM [2009] 1 FLR 443 he cited Re MB (Medical
Treatment) [1997] 2 FLR 426 a pre-MCA decision on
capacity
to consent to medical
treatment which made it clear that the likely consequences of having or not
having the treatment were relevant and said there was no distinction between
that test and the one in the MCA. On that basis, I intend to apply the statute
in this case. He did not make the point that "a refined analysis"
is probably not necessary where the question is as simple as whether someone
has the
capacity
to
marry.
"All decisions, whatever their nature, fall
to be evaluated within the straightforward and clear structure of the MCA ss 1
to 3" per McFarlane LJ in PC v City of York [2014] 2 WLR 1
7. It is
clear to me that DMM has to be able to understand the information relevant to a
decision (to marry)
and that information includes information about the
reasonably foreseeable consequences of deciding one way or the other. The
effect of the
marriage
making the will invalid is not just a reasonably
foreseeable consequence of
marriage,
it's a certain consequence of
marriage
which will have financial consequences to the parties. Is a financial effect
on the parties relevant to
capacity
to
marry?
In London Borough of Southwark v
KA [2016] EWCOP 20 Parker J said "P must understand the duties and
responsibilities that normally attached to
marriage,
including that there may
be financial consequences and that spouses have a particular status and
connection with each other." She also made it quite clear that this
did not mean for example that you had to understand financial remedy law before
you got
married.
She said "the test for
capacity
to
marry
is not high
or complex. The degree of understanding of the relevant information is not
sophisticated and has been described as rudimentary. I must not set the test
too high." One does not need a refined analysis as the President
said. There is also quite clearly a policy issue involved here, the test must
not be set too high because that would be an unfair, unnecessary and
discriminatory bar against those with
capacity
issues potentially denying them
that which all the rest of us enjoy if we choose, a
married
life.
8. In
paragraph 38 of the Respondent's submissions it is argued that the whole basis
if the argument that DMM does not have capacity
is wrong and it is not
necessary for you to be able to understand how your estate might be divided on
your death nor if you
marry
is it necessary to understand the details and
implications of that
marriage
on the provisions that you have already made in
your will nor is it necessary to understand the value of your estate or how it
will be apportioned if you are to die after that
marriage.
To have this sort
of knowledge demands too much of the ordinary person –
"It contradicts the weight of
authorities which repeatedly emphasises the rudimentary and straightforward
nature of the test for capacity
to
marry
and elevates it to something that
requires the input of relevant specialist professionals.
It would require a refined analysis which
does not typically enter into the decision to enter into marriage
made by a
person with full
capacity
and therefore risks setting a higher test for the
capacity
to
marry
for a person in DMM's position than for his proposed wife."
9. I asked
counsel if the words "the reasonably foreseeable consequences of
deciding one way or another" had any relevance and she said not to the
revocation of the will by marriage,
relying on that as being part of a refined
analysis which was not appropriate in
capacity
to
marry
cases. In the case of
A Local Authority v AK cited by both parties Mr Justice Bodey said:
"for most people marriage
is to be
regarded as a fairly straightforward concept (compared for example with
litigating, or with many medical procedures) one would not normally need to
spend too much time on assessing an individual's ability to 'understand,
retain, use and weigh' the information about
marriage
which is referred to in
"Sheffield". Nevertheless, there will occasionally be cases where the
degree and/or nature of the individual's impairment does make it necessary to
do so, because for him or her a decision about
marriage
is not actually a
simple one."
In that case and others there has been some
discussion about should you be able to understand that a reasonably foreseeable
consequence of marriage
is that your financial position might be affected by
marriage,
particularly if it failed and there were financial remedy proceedings.
No one has followed this argument but it seems to me that importing that into
capacity
to
marry
is setting too high a standard, too refined an analysis,
asking to take too many hypothetical situations into consideration.
10. However,
that seems to me to be very different from the fact that your will is going to
be set aside if you marry.
That is a statement of fact not a hypothetical
situation, you don't have to know what the situation will be if you die
intestate, all you need to know is "What you wanted to happen on 11
December 2013 cannot happen because your will is invalid because of the
marriage".
If you cannot understand that how are you said to be able
to understand, retain, use and weigh information as to the reasonably
foreseeable consequences of the
marriage?
It is said in Miss Bond's argument
that this is focussing on the testamentary consequences of the
marriage,
in my
view it's not, it's focussing on the factual consequences of
marriage.
I
therefore find that the fact that a second
marriage
revokes the will is
information that a person should be able to understand, retain, use and weigh
to have
capacity
to
marry.