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Family Law

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Court of Protection Practice and Procedure Conference 2016

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02 NOV 2012

CAPACITY: A, B, C v X, Z [2012] EWHC 2400 (COP), [2013] COPLR 1

(Court of Protection, Hedley J, 30 July 2012

After the death of his wife the man, who had significant means derived from a family business, was diagnosed with dementia. He, therefore, executed lasting powers of attorney in respect of his three children.

Following his diagnosis the man employed a full-time carer and subsequently said that he wished to marry her. From that point onwards relations with the family deteriorated and resulted in litigation regarding his capacity.

The applicants failed to satisfy the court that the man lacked capacity to marry by reference to the guidelines laid down in Sheffield City Council v E [2005] 2 WLR 953. Although the man had suffered a significant decline in his executive function he maintained many aspects of fundamental intelligence and the requirements for capacity to marry were comparatively modest.

It was not possible to make a general declaration that the man lacked testamentary capacity but there would undoubtedly be times when he did lack capacity in this regard and those times were likely to become more frequent. Any will he now created that was not supported by contemporary medical evidence attesting his capacity would be highly susceptible to challenge. The same applied with regard to his capacity to create a new lasting power of attorney but the applicants had failed to prove that he lacked capacity to revoke the previous power of attorney.

In relation to the management of his affairs the man lacked capacity. Due to the ongoing nature of managing affairs it was quite different from the specific act of making a will or a lasting power of attorney. He also lacked capacity to litigate and the causal link set out in the MCA 2005 of the impairment or disturbance in the functioning of the mind was satisfied by reference to the medical evidence.

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