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Consent orders and mental illness

Mental capacity is an interesting issue within the context of family law. Where is the line to be drawn between silly decisions made by a sane person with legal capacity and those made by someone with diminished mental capabilities and thus no legal capacity to make them?

The two ends of the spectrum are fairly clear. Most people are fully functioning and have full legal capacity to make their own decisions. At the other end, where adults suffer from a diagnosed mental illness, or have suffered damage to the brain, which makes them clearly unable to promote their own welfare, then another person can be appointed to look after their interests.

We have written before about how parties who lack capacity to litigate can be represented, so if you’d like more details about that, click here. In summary, an adult does not have mental capacity to litigate if they cannot understand information given to them, cannot retain that information long enough to be able to make a decision, cannot weigh up the information available to make a decision, or cannot communicate their decision. Children are dealt with differently, and are considered as a general rule not to have capacity whilst they are minors, although exceptions do apply.

In family law matters the interests of an incapacitated adult can be represented by someone else under a Lasting Power of Attorney. If that is not possible, for example if someone loses mental capacity without having signed an LPA then their interests will be safeguarded by the Court of Protection which has jurisdiction over the financial affairs, property, and personal welfare of people who lack mental capacity. The Court of Protection appoints Deputies, who can be family members or professionals, to make decisions relating to the affairs of those who lack capacity. If a suitable Deputy cannot be found or appointed, then the Official Solicitor can act as a Deputy.   An Attorney or a Court of Protection Deputy (known collectively as “alternative decision makers”) will represent the person lacking capacity in litigation or alternative dispute resolution.

An interesting issue about mental capacity arose in a recent case which concerned a former wife who was challenging a consent order made in financial remedy proceedings. It is unusual to appeal against a consent order, as by its very nature it reflects an agreement by the people involved about what will happen, which is then sanctioned by a judge to turn it into a binding court order. This woman was challenging the order on the basis that she did not have mental capacity to sign it when she did. According to the case report, she suffers from Bipolar Affective Disorder (also known as manic depression) which fluctuates in severity, allowing her periods of normal functioning and periods where she is hospitalised and sectioned under the Mental Health Act. It’s a fundamental point of law that in order to be binding, agreements must be between people with legal capacity.

After the consent order had been approved by the court, the woman claimed that she had not been in a frame of mind where she could properly have consented to the agreement. Because she lacked capacity, the order should not stand. She tried to appeal the decision of the district judge who had approved the order, who had no notice of her alleged lack of capacity to sign it at the time it was approved.

Interestingly, (for those of us of a legal persuasion at least!) this is the first time that this particular problem has been aired in the courts within a family law arena, so the judge hearing the application for permission to appeal had no binding precedent to go on.

Alongside alleging her lack of capacity to consent to an order at the time she did, the woman also claimed that the agreement was unfair in its terms. However, the unfairness of a consent order is not a valid basis for attempting to overturn it, so the judge found that the only real issue was the alleged lack of capacity. It is normal practice for solicitors to notify the court if there are concerns about their client’s mental capacity, but in this case the wife had dismissed her solicitors and was representing herself when the agreement was signed. She had no safety net.

The judge compared the family law and civil law approaches to capacity. He arrived at the conclusion that an order made on the basis of consent from a party who lacks capacity and is otherwise unrepresented is an order that would be invalid and should be set aside. He considered it was arguable (although not proven at this stage) that the woman lacked capacity at the requisite time, and he therefore gave her permission to proceed with her appeal against the order.

In getting permission to appeal she has cleared only the first hurdle. The challenge she now faces is to prove retrospectively that she lacked mental capacity at the time she signed the agreement. The assumption is that a person has capacity unless there is evidence to the contrary, so the wife must prove her case.

If you have concerns about capacity, or any other family law issues, please make an appointment on 01223 443333 to come in and talk to Adam, Gail, Simon or Sue.

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