- February 10, 2020
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The Court of Protection and Family law matters
There are certain decisions that are so personal that they cannot be made on behalf of a Protected Person (“P”) who lacks capacity under the Mental Capacity Act 2005. These include family issues such as consenting to a marriage, civil partnerships and divorce.
Although a Deputy cannot make these decisions on P’s behalf, the Deputy has a duty to protect P’s assets which can often be substantial as a result of a personal injury award. There a number of family law mechanisms available to protect P’s assets and the Deputy has a duty to support P with any family law matters.
The starting point for the Court when dividing the divorcing parties financial assets is to achieve “equality”.
This can be a concern where one divorcing party, P, has received a personal injury award which is intended to provide them with lifelong care and support.
Although the Court consider a number of personal factors including need and the extent of P’s injuries, the court have made it clear that the personal injury award will not be automatically excluded from P’s assets on divorce.
Having P’s award included as part of their assets and shared with their ex-spouse on divorce could have a very negative impact on P’s quality of life.
Sadly, research shows that where one spouse loses capacity, divorce rates are higher as it can understandably put strain on a marriage. It is therefore important that the Deputy can navigate these issues, especially if appointed as P’s Litigation Friend. The Deputy will need to understand the importance of achieving a Clean Break Order in any settlement as this should prevent the ex-spouse from being able to return for funds in the future. This is especially important where P is in receipt of a periodical payment which is index linked and increases over P’s lifetime.
In order to avoid the complexities in the event of a divorce for P, if P is married it may be that the Deputy supports P to enter into a formal agreement by way of Post- nuptial agreement.
If P informs the Deputy that they are engaged to be married, although this may be very positive news, the Deputy has a duty to consider what would happen in the event of a marriage and divorce, as above.
In these circumstances the Deputy may consider whether a pre-nuptial agreement should be entered into. This will only be appropriate where P has capacity and this specific issue should be assessed by a practitioner.
Although pre-nuptial agreements are not legally binding in the UK, the courts are now more likely to take these into consideration on divorce as long as they are correctly drafted and meet specific criteria. The Deputy should therefore assist P by ensuring they are receiving the correct family law advice.
In cases where P is living with a partner and they are unmarried the Deputy should consider whether cohabitation presents the risk that P’s partner will acquire a beneficial interest in a property that P owns. Often this property is tailored to P’s disability needs and has been purchased and adapted using P’s personal injury award.
In such cases the Deputy can support P to enter into a formal Cohabitation Agreement to make it clear that P’s partner is not acquiring any interest in P’s property notwithstanding that they live there and may make certain household contributions.
Case law and commentary
Last year the case of PBM v TGT & X Local Authority (2019) EWCOP 6 touched upon some of the issues above such as capacity to enter into pre- nuptial agreements and capacity to marry. PBM wished to marry his fiancé and his property and affairs deputy obtained a caveat against the marriage under the Marriage Act 1949 and sought directions from the Court of Protection.
Interestingly, the court found that PBM had capacity to marry and enter into a pre- nuptial agreement, however PBM still lacked capacity to manage his property and financial affairs in the general sense. This case shows that such decisions should be treated as issue specific by a Deputy.
The judge also stated “the Deputy in this case who having legitimate concerns, had a responsibility to take the actions that she did” which cements that a property and affairs deputy can and should intervene in family law matters such as marriage where it is necessary to safeguard P’s assets and seek the relevant directions from the court.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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