DMM, Re (Alzheimer's : power of attorney) [2017] EWCOP 32

Important noticeThis judgement was delivered in Private. The judge has given leave this version of the judgement to be published on condition that bracket 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.[2017] EWCOP 32Case No 13095074
IN THE COURT OF PROTECTION
Date 26 July 2017
IN THE MATTER OF DMM
Before
His Honour Judge Nicholas R. MarstonB E T W E E N:-
Between
EJ (as attorney for DMM)ApplicantSDRespondentParties: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.JUDGEMENTI 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) and L B of Southwark v KA (2016)."
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) 1FLR 443 he cited Re MB (Medical Treatment) 1997 2FLR 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) 2WLR 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) EWCOP20 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.

Cited in 1 later judgment