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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> DMM, Re (Alzheimer's : marriage : power of attorney ) [2017] EWCOP 33 (2 October 2017) URL: https://www.bailii.org/ew/cases/EWCOP/2017/33.html Cite as: [2017] EWCOP 33 |
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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 33
IN THE COURT OF PROTECTION
Case No: 13095074
IN THE MATTER OF DMM
2 October 2017
Before:
His Honour Judge Nicholas R. Marston
B E T W E E N:-
EJ
Applicant
-and-
SD
First Respondent
-and-
DMM (by his litigation friend, the Official Solicitor)
Second 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)
For Second Respondent: Fenella Morris QC, 39 Essex Chambers (Counsel), Jess Flanagan, Clarke Willmott (Solicitor)
JUDGMENT
See also: [2017] EWCOP 32
1. I heard
this case on 2nd October 2017, the parties were the Applicant EJ,
who is one of three daughters of the Second Respondent DMM, who in turn wants
to marry his long time partner SD, the First Respondent. The issue in the case
is does DMM, who it is accepted suffers from Alzheimer's Disease have the
capacity
to marry. At a Hearing in early September I heard arguments from the
Applicant and the First Respondent on the legal issues raised in this case. I
refer to the written judgment I handed down in that case for a full account of
the background to the case and the legal arguments on both sides. Since then I
have made DMM a party and he is now represented by the Official Solicitor as
his litigation friend. Dr Hugh Series, an eminent consultant psychiatrist who
specialises in old age, has been jointly instructed to report on DMM's
capacity
to marry.
2. His report
is dated 15/09/2017 (at tab 35 in the bundle). He has also provided an
addendum report answering questions put to him on behalf of the Applicant in
particular. In the original hearing the issue turned on DMM's understanding of
the effect of his remarriage on his previous will, it invalidates it, and on
the effect this would have on the financial position of the 3 daughters, who
under the will split the majority of DMM's estate between them (if he died
intestate the majority of the estate goes to the First Respondent). I held on
the basis of the Mental Capacity
Act and my understanding of the authorities
that the fact that a new marriage revokes the will is "information a
person should be able to understand, retain
use
and
weigh
to have
capacity
to
marry".
3. In his
main report Dr Series concluded that DMM had the capacity
to marry because he
did understand his will would be revoked and the financial position of his 3
daughters would be effected by that and his marriage. He was clear that DMM
knew the will would be cancelled, that he might not be able to make a new will,
that the rules would therefore produce a different result to the old will and
his children might receive less and the First Respondent more.
4. In further
answers to questions in the addendum Dr Series said "It was clear that
DMM retained and understood the fact that we were discussing the potential
consequences of his marriage to the First Respondent throughout the two hours
or so of the interview. In particular he understood that his children might
receive less than before and the First Respondent might receive more".
I am satisfied that on the test that I thought appropriate DMM has at present
the capacity
to marry.
5. The Applicant made an application for Dr Series to re-interview DMM in rigorous conditions because it was claimed that undue influence had been brought to bare on DMM or possibly the Doctor by the First Respondent. After reading the answers to the questions set out in the addendum it was clear to me that no possible allegations of undue influence on Dr Series were sustainable and that was the view of Mr Troup for the Applicant. I heard full argument on the issue of undue influence on DMM and held that I would not order Dr Series to re-interview DMM but of course the Applicant could explore this issue in cross examination. I refer to my full oral judgment on this point.
6. After
giving judgment the Applicant asked for permission to appeal which I refused
then indicated that they would not wish to contest the case further and wanted
5 days to consider an appeal. I therefore made an Order that DMM had capacity
to marry that comes into effect at the end of Friday, the effect of this is to
stay things until then and the Court of Appeal can then be asked to stay
pending the consideration of permission to appeal. I then heard brief evidence
on the issue of if DMM's condition was likely to deteriorate and if so on what
time scale. A note of what Dr Series said was taken and if it comes to an
appeal will be shown to the court in order for there to be an expedited hearing
if possible.
7. I was then asked to set out this short judgment to explain what had happened in the case. I would like to thank counsel for their very helpful argument in this case. Finally I would express the hope that the First Respondent and DMM's 3 daughters, the four people who are closest to DMM, find a way of moving forward together after this very bitter dispute. DMM suffers from a degenerative disease and he is going to need the help of all those who love him in the very near future.