In sickness and in wealth: assessing the capacity to marry for elderly or vulnerable people

Much of my legal practice involves advising local authorities, individuals and charities about mental capacity and its interaction with adult safeguarding. After an investigation prompted by a safeguarding alert, the challenge is, commonly, whether any kind of state intervention is required or justified, in order to avoid the exploitation of a vulnerable adult by others.

Striking the right balance between protection and intervention is often very difficult. The elderly, disabled and those with progressive dementia are often heavily dependant on the companionship and practical help of others. They may be less well equipped than others to scrutinise the real value of services offered to them by other people or the motivation behind offers of help. They may be very easy to manipulate or control due to physical frailty, infirmity or short term memory problems.

These members of our society deserve state protection from harm. They are not children - in their lifetimes they have probably contributed significantly to the economic strength and social infrastructure of their community - but, like children, their vulnerability must be recognised alongside their need for independence.

This recognition of vulnerability must, however, be balanced against the reluctance of our society to 'write off' or institutionalise those who may retain ?a high functioning intellect despite an ageing body, and the understandable enthusiasm of society to promote independence - both physical and mental - wherever possible, and to ensure that sufficient 'choice' and 'control' are placed in the hands of the vulnerable as well as the powerful in society.

Empowerment and safeguards

This latter principle of empowerment is enshrined in the Mental Capacity Act 2005 which, within its core principles states that:

? a person must be assumed to have capacity unless it is established that they lack capacity;

? a person is not to be treated as unable to make a decision merely because they make an unwise decision; and

? capacity is 'decision-specific', meaning that a lack of capacity to make a complex decision will not prevent the same person from having capacity to make a straightforward decision.

?It is also clear that the law of mental capacity has two main aims. First, to promote freedom and choice wherever possible, in order to preserve a person's independence and human rights, and second, to protect and to safeguard those who lack capacity from exploitation and abuse by others.

Nowhere is the tension between these aims more acutely present than in dealing with the right to marry, which, in addition to being of very key personal importance to people, also directly engages Article 8 of the European Convention on Human Rights on the right to private and family life. The role of the state in governing a marriage within society must therefore be limited ?and proportionate.

However, any close examination of the right to marry becomes fraught with difficulty where it dovetails with adult safeguarding, as demonstrated by the four examples set out in the box below. ?Three of these scenarios are true stories. ?The fourth is an entirely typical safeguarding situation.

Right to marry - scenarios Scenario One – X and Z, who live in the same residential home and have similar learning difficulties, would like to get married X is a man with learning difficulties. He lives in residential accommodation. Also living there is Z with whom X wishes to have a relationship. Their levels of disability are similar. Both express a wish to marry. X’s family object as they fear that the relationship will be a volatile one and it is believed the relationship might endanger X’s stable behaviour at the home. His family also doubt that X has an adequate understanding of sexual behaviour and family planning. The family would prefer to keep things just as they are, but this is contrary to the wishes of X and Z. Scenario Two – X is elderly but has full mental capacity and would like to marry much younger long-term home-help Z X is aged 76. Z is 40. Both retain full mental capacity. Z has been providing regular practical help to X for over five years. They have a close relationship. X has expressed a desire for a live-in companion as he has no family living close by. X has proposed marriage to Z. X’s only income is his state pension and disability benefit. He has made no will. Z would like to marry X. Scenario Three – Elderly X has minor physical disabilities and dementia, and goes abroad to marry his neighbour’s relative but she hasn’t joined him in the UK X is a man aged 80. He has been twice bereaved by the death of his two former wives. He has minor physical disabilities. He has also been diagnosed with dementia but lives independently. He receives help from his neighbours, with housework. He is lonely. His existing will benefits his brother, following his second wife’s death. His neighbours (who have family overseas) tell him that their relative abroad has heard all about him and would like to meet him. X is taken abroad by his neighbours and marries their relative in a foreign marriage ceremony. He flies home a month later. His wife is expected to follow on. X then learns that his wife is unwelcome in the UK because of criminal convictions. He lives in hope that she will join him and sends her the vast majority of his pension income, on a weekly basis, in the interim. He also changes his will to exclusively benefit her. Some seven years later, his neighbours are still reassuring him that his wife will join him soon … Scenario Four – Wealthy widower X has been diagnosed with dementia and wants to make a will in favour of newly appointed live-in carer X is a man with a supportive family. He is very wealthy. He is recently bereaved after 56 years of marriage. He is diagnosed with dementia and has some mobility problems. His family help him recruit a private live-in carer for him (Z). Within six months, X is expressing a desire to marry Z. His family are horrified. Contact between X and his family is discouraged by Z who develops an increasing influence over him. X has always been close to his family and has previously executed a power of attorney in favour of his daughters and a will in favour of his children and grandchildren. He now wishes to execute a new will and lasting power of attorney in favour of Z, alone.

 

In my view, identical case-law principles governing the right to marry would be applied by the court in each of the scenarios above, assuming that the capacity of X in each case, is the same.

Equally, it is my view that the relatively low threshold of mental capacity required by the law would permit each of these marriages to proceed, regardless of the ?fact that some of these scenarios involve ?a potentially dangerous inequality of ?mental capacity.

Capacity test

'Capacity to marry' is a common law test, set against the general backdrop of the Mental Capacity Act 2005 legislation.

The legal principles of capacity to marry are derived chiefly from Sheffield City Council v E and Anor (2005) 2WLR 953. The principles were usefully summarised by Munby J (as he then was), as:

1. It is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words.

2. He or she must understand the nature of the marriage contract.

3. This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage.

4. That said, the contract of marriage is, in essence, a simple one, which does not require a high degree of intelligence to comprehend. The contract of marriage can readily be understood by anyone of normal intelligence.

5. In addition, the burden of proof is ?upon the party alleging a lack of capacity to marry.

Perhaps with scenario one in mind, Munby J also said: "There are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled."

We would probably all agree with this statement. There are always risks connected with the big decisions in life. The outcome can never be guaranteed. A marriage may last or it may fail. It is not for the state to assess the risks and decide.

We may also expect the law to look kindly upon scenario two. This relationship has evolved over time, from altruistic beginnings. It doesn't appear to be contaminated by any ulterior motive. A contract of marriage here might simply regularise and enhance a depth of companionship which already exists.

It is also worth noting that the absence of local, supportive family may mean that there is little objection to these new arrangements.

Scenario three is more complex. This has all the hallmarks of a "marriage of convenience". X is seeking companionship and help, while Z seeks the status of marriage for immigration purposes and financial security. Living in the UK will also bring her closer to her wider family.

There is, of course, nothing illegal or inherently wrong with such a marriage of convenience which is simply a contract of offer, acceptance and "consideration" (mutual benefit).

But, perhaps predictably, the UK Border Agency has other ideas. X does not receive his part of the bargain (companionship) but remains under pressure to fulfil his obligations (financial security). X does, of course, retain the right to seek a nullity of the marriage (on the grounds of non-consummation) and retains the right to petition for divorce. He can also choose to amend his will again if he wishes.

Cause for concern

But these steps require a considerable strength of will and confidence that the situation will never change. It will take only a modest amount of reassurance and regular contact, by phone, between X and Z to string him along. This is exactly what occurred in reality. Before his death, X parted with £45,000 in financial transfers overseas which paid for the rental of a luxury villa in Montego Bay.

Scenario four raises numerous causes for concern. Unlike the modest living of X and Z in scenario two, X, here, is independently wealthy. His carer, under a private arrangement, will have been subject to no mandatory CRB checks or ongoing regulation. Once employed she will enjoy employment rights and exclusive daily access to X. The friction between Z and the wider family is inevitable and complex. X finds himself in the middle of a number of competing interests.

It is, of course, quite possible that X independently reached a decision that he wished to marry Z, after just six months of "cohabitation" but, for him, his family and his financial affairs, the consequences of marriage will be enormous:-

1. He now faces pressure to place his affairs in the hands of Z as his new attorney, rather than in the hands of his family.

2. His carefully crafted will, incorporating family trust and tax planning measures to deal with his wealth, will be automatically revoked by marriage. If he is considered to have capacity to make a new will, he can benefit his new wife exclusively. If he is deemed to lack capacity, the Court of Protection can be asked to write a basic will for him, in his best interests, but such 'statutory wills' often prove to be complex and costly when competing beneficiaries do not agree. And almost inevitably the costs ?of this divisive litigation are borne by ?X personally.

3. If no such testamentary planning ?takes place, X will die intestate, without a will, with the result that the majority of his money will pass by default to his new wife.

?In essence, X will face huge upheaval of a personal and financial nature, as a consequence of a simple decision to formalise a state of companionship which is already available to him.

The MCA 2005 defines capacity as understanding information, retaining information and using or weighing information as part of a process of ?decision-making.

It is worth noting from section 3(4) of the Act, that:-

"The information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another, or (b) failing to make ?a decision".

In scenario four, the reasonably foreseeable consequences of a decision to marry are readily apparent - the unravelling of complex, carefully considered arrangements benefitting a host of other people. But it is unlikely that X would comprehend this because such things fall within the category of "property and affairs", the capacity for conducting which he had lost some years previously…

Encourage and protect

Should it be said, then, that a wealthy person with complex affairs should be denied the same right to marry enjoyed by his poorer fellow citizens?

No - that would be discriminatory and inevitably engage Article 8, and constitute a fundamental breach of X's human rights.

And yet, I consider it highly unsatisfactory that a low threshold test of capacity for marriage, designed to allow almost anyone the chance of the "immense enrichment of marriage" should also permit the cynical exploitation of vulnerable people for financial gain.

Complex as it is, I believe the answer is for the courts to attempt, where possible, to encourage relationship while at the same time protecting against financial exploitation.

Decisions such as that in Sheffield City Council clearly had in mind a wish to ?permit relationship wherever possible, within the socially beneficial structure of marriage. Interfering with this will inevitably bring one into conflict with individual human rights.

Applying forensic scrutiny to the qualities of a proposed marriage partner is understandably a form of social engineering which would be abhorrent to the court. Would you welcome a marriage partner chosen for you by the state in your ?best interests?

It is therefore perhaps inevitable that the court must continue to permit a marriage to take place in all of the four scenarios.

But, in scenario four, should the court, at the point of granting its declaration of capacity, also do everything in its power ?to ringfence and protect the assets of X if there is any suspicion that capital rather ?than companionship is the true motivation for matrimony ?

Precisely what measures will be available to the court must be decided on a case by case basis.

In criminal law, the law requires a very high standard of proof before conviction. The inevitable consequence of this is that some guilty people avoid conviction. That balance is considered preferable to a low level of proof and the wrongful conviction of the innocent.

It is probably true that the threshold for marriage must continue to be a low one, in order to enhance and enrich the lives of people who, despite lacking capacity ?in many other respects, understand their wish to express love and commitment to another person.

But it must also be understood by the court that there are consequences from applying this policy and the potential exploitation of lonely and vulnerable people in our society is an undesirable consequence that the courts must always do their ?utmost to avoid.