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O'Neill, Nick; Peisah, Carmelle --- "Chapter 2 - Decision Making and Relationships" [2011] SydUPLawBk 4; in O'Neill, Nick; Peisah, Carmelle (eds), "Capacity and the Law" (Sydney University Press, 2011)



Chapter 2 – Decision-making and relationships

2. 1. Introduction

Decisions by cognitively impaired adults are rarely made in an interpersonal vacuum. Significant others, including family, friends, carers and other service providers, usually play a part. Conversely, cognitive impairment may impact on a person’s capacity to form or sever relationships. Thus, careful scrutiny is required when there is a significant change in the nature of interpersonal relationships of a person with dementia, particularly if this change results in the execution of legal documents.[1] This chapter will address the interaction between decision making and relationships, particularly with reference to adults with dementia. It includes a discussion of: (i) indicators and patterns of influence; (ii) the vulnerability of cognitively impaired persons to influence; and (iii) the assessment of the capacity to form and cease interpersonal relationships.

2. 2. Indicators and patterns of influence

Lawyers and health care professionals involved in the execution of legal documents by cognitively impaired adults should be mindful of the potential for influence by others on such vulnerable individuals. As described in Chapter 4, the term “Undue Influence” is a legal concept referring to the specific circumstances of coercion or subversion of will in the will-making process. Until now that construct has been quite narrowly defined and difficult to establish and has rarely been successfully raised in the courts in Australia.[2] A broader working definition of influence, where others seek to persuade cognitively impaired individuals to make decisions or execute legal documents in their favour, is probably more useful.

Common indicators that the cognitively impaired person is being adversely influenced are:

1. Sequestration and isolation of the impaired person such that outside contact is inhibited (e.g. telephone numbers are changed or disconnected, the house in which the impaired person lives is heavily barred or no-one seems to be home on a frequent basis);

2. Previously trusted family members or friends are no longer favoured or trusted by the cognitively impaired person;

3. Longstanding patterns of formalising such trust (e.g. by making trusted persons attorneys, guardians, executors or major beneficiaries in wills) are changed;

4. The person of influence instigates changes in legal documents such as wills or powers of attorney and is involved in the procurement of such changes;

5. The lawyer whose professional services are sought is not well-known to the cognitively impaired person.

It is not unusual for an older wealthy person who is surrounded by conflict between family members and friends vying for their influence to be drawn into that conflict. Most commonly, the person in the position of influence is a family member, often a child. Situations of adverse influence usually occur between an elderly cognitively impaired person and the following persons:

1. a cohabiting family member such as an adult child;

2. a non-resident child;

3. a helpful neighbour or friend;

4. a formal or informal carer;

5. a more distant family member such as a niece or nephew;

6. a “suitor” who may, or may not become a de facto partner or spouse, usually significantly younger and cognitively intact; and

7. professionals such as lawyers, doctors, accountants, clergy and policemen.

2. 3. Vulnerability to influence of cognitively impaired adults

2.3.1. Dependency and isolation

Physical dependency in a community-dwelling, ageing, cognitively impaired person lends itself to the development of a situation where the carer becomes central to maintaining the person at home. They may or may not be living with the impaired person, but close and frequent contact between the carer and the impaired person leads to a special relationship and puts the carer in a unique position of influence.

The carer may be paid or be a family member who has lived with the older person for some time. The carer may be a friend or neighbour or more distant family member who was previously uninvolved until they became aware that the older person needed assistance. Often the relationship is newly formed or there has been a change in the impaired person’s attitude to the other person, coinciding with the onset of the persons’ disability or frailty. When this involves a change in previous alliances, the older person is often persuaded to make changes in important legal documents such as wills, powers of attorney or guardianship to ratify their new-found faith in or gratitude to the carer. Sometimes they marry the carer. Often there are threats or promises - sometimes unrealistic – to keep the ageing person out of residential care. Changes in documents such as wills may be made in a desperate attempt to garner care, support or comfort at a time when the impaired person feels increasingly vulnerable or threatened.[3]

Isolation of the impaired person from significant others may intensify the power of the person of influence. The courts or the guardianship tribunals are often called on to intervene when previously established or now needed access to the impaired person is impeded by a person of influence, particularly if their influence has been asserted recently. However, it is usually difficult to enforce access as a matter of practice. This is particularly the case where the older person supports the lack of contact.

2.3.2. Pawns in family conflict

Recent research lends support to clinically-based observations of family relations in older life which suggest that having a dependent parent provides an opportunity for siblings to play out a competition to be the best, most caring child.[4] The role of carer sometimes allows a previous “black sheep” to become newly respected for their competence or to be listened to for the first time.[5] Unresolved issues of attachment may emerge and pre-existing patterns of insecure, anxious attachment may predispose an adult child to enmeshment or excessive closeness with the ageing, disabled parent.[6] They may be threatened by assistance from or involvement of others in the life of the disabled parent.

Strawbridge and Wallhagen found that 40% of 100 adult child caregivers were experiencing relatively serious conflict with another family member, usually a sibling, and usually because they failed to provide sufficient help to the caregiver. In addition to lack of support and acknowledgement of the caregiver, other sources of conflict include: (i) differences around issues of impairment (e.g., seriousness of the patient’s disability); (ii) disagreements over the amount and quality of attention given to the patient by the other family members; and (iii) the process of institutionalisation.[7] When such family disagreements align with the older person’s views (e.g. “Mum hasn’t got dementia”, “she doesn’t need any help” or “she doesn’t need to go to into a home”) family members (or indeed any protagonist in the conflict) may collude with the older person’s denial or lack of insight. Problems with decision making may be exacerbated in this way.

2.3.3. Appraisal of others

Appraisal of others is often tainted by dementia, even in the early stages. People with dementia may change their attitudes towards significant others during the course of the illness. This change is usually triggered or fed by the disease process as well as the natural frictions within families. The person with dementia may develop antipathy towards or show favour towards family members previously disfavoured.

This reduced ability to appraise others may be understood in the light of many of the neuropsychological deficits typically associated with common forms of dementia. First, deficits in recent and autobiographical memory may effect a person’s decisions about significant others. [8],[9] Deficits in recent memory may cause people with dementia to forget that family members have visited and they may form adverse opinions about such family members as a result. It is not uncommon to hear the complaint: “no-one comes to see me” despite regular daily visits by family members.

Impairment in autobiographical memory may make recall of past relationships, good times and bad times, including past disputes, difficult. For example, an elderly man had a twenty year history of conflict with two of his children expressed in pages of vitriolic correspondence, a court case over property and a pattern of wills which favoured his other son. When he began to suffer from dementia he forgot his previous conflict and began favouring the two previously disfavoured children.

Second, people with deficits in working memory may only be able to consider information that is concrete and physically in front of them or consider one issue at a time, rendering them unable to weigh and consider the merits of one person versus another. [10] Those with such deficits may be unable to appraise their relationships in the context of the past and present simultaneously and they may be particularly vulnerable to those with whom they are in frequent visual contact.

Thirdly, deficits in judgment and reasoning may render the affected person unable to consider the meaning, significance or moral import of another’s behaviour, weigh up priorities and come to well-reasoned decisions. [11],[12] This may render them prone to making shallow, superficial and impulsive judgments of people.

Fourthly, personality change towards apathy and passivity will render a person with dementia vulnerable to the influence and opinions of others. For example, having been previously forthright, opinionated and able to scoff at and discourage rivalries between her children, an elderly lady with dementia sat passively and accepted her two eldest daughters’ criticism of her previously beloved youngest daughter. She thereafter questioned the integrity and loyalty of her youngest daughter.

Finally, paranoid ideation may poison affections and new alliances may be formed based on the exploitation of these poisoned affections. [13]For example, an elderly man with dementia misinterpreted his two previously adored daughters’ attempts to procure services for him as being: “all about the house and my money”. This in turn was exploited by his son who fed his father’s mistrust and paranoid ideas about his sisters in order to gain favour with his father.

A case file review of 50 cases of family and systems conflict in cases of dementia brought to the Guardianship Tribunal of New South Wales demonstrated how previously trusted family members might be alienated during the course of dementia.[14] It was found that the person with dementia was involved in the conflict in 76% of cases. Surprisingly, family conflict occurred most often in mild to moderate dementia as reflected by the mean Mini Mental State Examination score of subjects which was 18.85. Alliances between the person with dementia and the protagonists were always associated with accusations of undue influence with regards to signing legal documents, forming adverse opinions of various family members (“he poisoned her about us”) or accepting their input into care. When the person with dementia suffered paranoid ideation and was involved in the family conflict, their suspiciousness and paranoid ideation was fuelled by hostile family camps who fed the person with dementia accusations of financial abuse or “just wanting to dump” the person with dementia into a nursing home.

2.3.4. Protective factors against influence

Suspiciousness and paranoid ideation are common in dementia and may have a general or specific focus. While suspiciousness with a specific focus may render a person with dementia amenable to undue influence from others about the object of their mistrust, non–specific suspiciousness directed at all and sundry may protect a person against influence. Similarly, the rigidity that sometimes accompanies progressive dementia may render a person resistant to the opinion and advice of others.

Further, the nature of family dynamics may be protective against undue influence. Families won’t invariably splinter in response to the friction created by caring for a person with dementia. “Collectivist” families emphasise kinship ties, belongingness and family responsibility over other personal roles and obligations.[15] A sense of common goal in care-giving is promoted and negative perceptions and distorted views expressed by the person with dementia will be glossed over or dismissed.

Sometimes the need to involve formal tribunals or courts in formalising changes in decision making powers may be averted by conciliatory efforts or family therapy. Simple measures which are often very helpful include:

(i) psychoeducation – educating the family or protagonists about the potential for cognitive deficits such as memory loss and judgment to distort the perceptions of the person with dementia about their significant others, thereby “externalizing” the source of the problem by “blaming” the dementia;

(ii) discouraging protagonists from “buying into” distortions of the person with dementia such as “no-one visits me”;

(iii) encouraging protagonists to check the veracity of statements such as “he stole my money” which might be fuelled by paranoid ideation;

(iv) finding common ground (e.g. to care or advance wellbeing) amongst protagonists which might be expressed differently.

A referral to a family therapist or conciliator might be thus considered before embarking on formal legal processes. Conciliation is sometimes achieved within the context of court or tribunal hearings. In the aforementioned study of New South Wales Guardianship cases, conciliation successful in 30% of cases. Success was often achieved by finding common ground between family members and relabeling or giving positive connotation to family members’ mutual accusations. For example, a typical case of sibling conflict involved a carer son who was accused by his sister, brother and health care professionals of being “inflexible, secretive and lacking the skills” to care adequately for his mother, with whom he had an “excessively enmeshed” relationship. Accusations of the son’s incapability were re-labelled by the Tribunal as concern for her welfare and his brother and sister were engaged by the Tribunal in supporting him to obtain respite and pursue his own interests. An attempt at conciliation was deemed neither possible nor appropriate in 26% of cases due to (i) absence of crucial family members; (ii) “entrenched or severe conflict”; or (iii) conflict based on the person with dementia’s delusions or lack of insight. In 14% of cases the Tribunal was unsuccessful in bringing the parties to a settlement despite its best endeavours.[16]

2.3.5. The need for caution when taking instructions or assessing capacity

The considerations set out above suggests the need for those taking instructions from, and those asked to assess the capacity of, people with cognitive impairment to execute legal documents such as powers of attorney, enduring guardianship and wills to obtain very careful histories of family relationships of the people they are assessing. An assessment of the person’s understanding of any conflicts or tensions in his or her environment particularly involving those under consideration for appointment is advisable.[17]

Attempts should be made to procure the history of previous documents when health care professional are asked to assess competency of a person with cognitive impairment to sign legal documents or lawyers are asked to draft such documents. The rationale behind changes in such documents should be carefully scrutinised, particularly if there are changes from an established pattern of trusting or favouring certain family members. Both those assessing capacity and the lawyers involved should ask themselves: what is the will-making or power of attorney-granting pattern of the person with cognitive impairment and has this changed?

Those assessing capacity should enquire whether the lawyer is the person’s usual lawyer or whether a person in a position of influence has used their own lawyer or procured a lawyer with whom the person with cognitive impairment is unfamiliar.

It is important to ensure that the person is executing the document freely and voluntarily and is not being “schooled” to make an appointment.[18] Therefore, assessments or interviews of older people who wish to execute legal documents are best done in private. Notwithstanding these precautions, interviewing or assessing a person in private does not preclude the need for the kind of proper enquiry and careful probing outlined above. A person can still be seen in private and ‘influenced’ by the presence of a significant other sitting outside in the waiting room. Those with dementia and frontal lobe impairment often have a tendency to respond to the environment rather than being able to recall and manipulate recalled facts of their life including relationships. It is much easier for such a person to recall and consider the needs or demands of those most recently and concretely in their presence (e.g. the person who brought them to the appointment and is sitting outside in the waiting room) than recall and hold in their minds the needs of others in their lives who they may not have seen recently.

2. 4. Capacity to enter into and sever relationships

2.4.1. Capacity to consent to sexual relationships

Deciding to enter into a sexual relationship is obviously a personal decision which normally does not require any formal contract or test of capacity. Short of intervening in cases of abuse, the courts cannot make that decision on behalf of people with cognitive impairment over 16, although society has an obligation to ensure that their choices are voluntary. Anyone who is over the legal age of consent may have a sexual relationship with anyone else over that age, provided that those involved are consenting.[19] However, this raises the question are those involved able to consent to such a relationship?

To this end, doctors or other health care professionals are sometimes asked about the appropriateness of two people - either one or both of whom have cognitive impairment or developmental disability – entering into a sexual relationship. Family members or service providers often have concerns about people with cognitive impairment arising from dementia, intellectual disability, acquired brain injury, psychological condition or some other cause entering into a sexual relationship. Their concerns may be about exploitation, pregnancy or the risk of infection or may arise from their opposition to and the possibility of the person with the disability marrying or becoming a parent.[20]

Sometimes such concerns are based on ignorance, insensitivity to the sexual needs of cognitively impaired individuals and, in the case of elderly residents, ageist beliefs. Residential staff and families alike report discomfort, confusion and embarrassment in dealing with the sexuality of older residents. [21],[22],[23] Yet, sometimes such concerns are well-founded. Importantly, the risk of emotional harm as a result of sexual abuse is sometimes underestimated with regards to cognitively impaired people such as those with Alzheimer’s disease who cannot recall recent events and experiences.[24] In particular, it has been argued that the burgeoning literature regarding implicit memory shows that people with Alzheimers’s disease can still be affected in a lasting manner by experiences that they may not be able to consciously recall having had.[25]

Therefore, when the appropriateness of a sexual relationship involving at least one cognitively impaired individual is called to question, two issues need to be considered: (i) do the individuals have capacity? and (i) is there harm or abuse? With regards to capacity, as yet no legal test has been developed in the common law to deal with consent to sexual relationships in the context of civil law. Nevertheless, it has been suggested elsewhere that the test in the English Court of Appeal case Re MB (Medical Treatment) would be the appropriate test.[26] To have capacity under this test, the person must be able to understand and retain information about what is involved, be able to weigh the information in the balance and make a decision.[27] The particular circumstances of the individuals involved must also be taken into account. Building on suggestions made elsewhere, we consider that it is appropriate to take the following factors into account when assessing capacity to consent to sexual relations;

1. What is the person’s understanding about what is involved in sexual intercourse?

2. What is their knowledge of the emotional obligations of romantic relationships in general and in relation to the specific object of their affections?

3. What is their knowledge (at a basic level) of the risks of pregnancy and sexually transmitted diseases?

4. Can they advocate for their interests, and terminate the relationship if they choose? [28] [29]

As a separate issue, when considering issues of abuse, harm or exploitation, one might consider:

1. What kind of relationship do they have? Is there a power imbalance or element of coercion?

2. Is there a significant discrepancy between the two people’s cognitive capacity?

3. What pleasure (or otherwise) do they experience in the relationship? Are they willing or content for it to continue?

It is important that the two issues of capacity and abuse/harm be considered separately. In the absence of harm or abuse, a lack of capacity to consent formally to sexual relations does not necessarily mean that the relationship should be prevented or discouraged.[30] This issue commonly arises in residential care where the subject of sexual behaviour is complex and fraught with a minefield of systemic, legal and ethical issues. Nursing homes have a duty to provide residents with liberty - both intimate and sexual - to associate freely with others while protecting them from abuse, injury and neglect.[31] Achieving the right balance between these two responsibilities is a difficult task and there is a need to treat each case on its individual merits. Ehrenfeld et al studied the sexual behaviour of 48 patients with Stage I –II dementia and found their behaviour to be mostly heterosexual but ranging from love and caring to romance and outright eroticism. Staff and family responses were variable but behaviour at the level of eroticism aroused the strongest staff reactions, often rejection, disgust and anger. The most extreme reactions were to cases of sexual harassment by male residents with dementia towards female residents or staff; however, erotic relationships between two “infirm” residents posed the biggest dilemma for staff, especially when staff learned that one partner was passive while the other was active. [32]

A scenario described in the latter study of Ehrenfeld and observed commonly in clinical situations is one in which a resident’s attraction towards another resident is based on misidentification or failure to recall their own marital status. Family and staff’s reactions to this will differ depending on the marital status of either resident. However, if both partners are single (by virtue of widowhood or otherwise) and there appears to be no coercion involved, should the relationship be facilitated despite a likely lack of capacity to enter into the relationship in at least one of the parties involved? Berger reported on a case of a romantic couple of mixed cognitive capacities, a situation where one would normally be wary of exploitation. However the couple, both widowed (one of whom had mild dementia) developed a close companionship within the nursing home and “were obviously contented with the camaraderie and support the other provided”. The cognitively intact resident then created a dilemma for staff by requesting private space for intimacy.[33]

An important ethical consideration discussed in relation to this case and many of the other cases of sexuality in this context is the competing notions that may guide decision making for demented persons i.e. the role of precedent autonomy (the manifestation of the patient’s pre-dementia, long-held values) versus the present-orientated demented self in determining choices. [34], [35]

The conclusion Berger comes to in relation to this case is a thoughtful and pragmatic solution to the wide variety of such clinical situations with which health care professionals are presented:

Staff should be flexible in their actions as advocates, and need to evolve their role as conditions warrant. The staff may be obligated to disallow a physically intimate relationship if Mrs. H’s interests are not served…. They may actively assist her in maintaining a satisfying sex life.

[Staff] should negotiate with the couple some limited breaches of privacy in order to assess, over time, the kind of advocacy Mrs H. needs, and whether the relationship continues to serve Mrs H’s interests. These interventions might include serial assessments of Mrs H’s capacity, and discussion with the couple of the physical expressions and emotional nature of the relationship. The greater the resident’s cognitive capacity the less parentalistically the staff should behave. [36]

2. 5. Capacity to marry

As we have already emphasised, the right to form relationships is a fundamental human right into which neither the courts nor doctors have a right to interfere unless the exercise of that right involves abuse or exploitation, which, in the case of marriage may be of a sexual or financial nature, or involve sequestration of the person by the spouse. As with other areas of decision making, capacity is assumed unless evidence calls this presumption into doubt. Whose responsibility is it to trigger a challenge to a person’s decision to marry? In the case of late marriage or remarriage, extreme caution is needed to distinguish between proper and reasonable concern of family members and family conflict arising from, for example, disgruntled children who resent the remarriage of a parent.

2. 5. 1. The common law

2. 5. 1. 1. Capacity to marry in England

There is no test, strictly speaking, for capacity to marry. In 2004 Munby J of the Family Division of the High Court of Justice in England summed up the law on capacity to marry in four propositions:

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

2. They must understand the nature of the marriage contract.

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

4. Nevertheless, 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.[37]

The question is whether a person has the capacity to marry at all, not whether they have the capacity to marry a particular person rather than another particular person. That question is distinct from the question of whether it is wise to marry at all or to marry a particular person.[38]

The duties and responsibilities that normally attach to marriage have undergone substantial change over the last century. As a result, as Munby J noted:

Today both spouses are the joint, co-equal heads of the family. Each has an obligation to comfort and support the other. It is not for the husband alone to provide the matrimonial home or to decide where the family is to live. Husband and wife both contribute. And where they are to live is, like other domestic matters of common concern, something to be settled by agreement, not determined unilaterally by the husband. Insofar as the concept of consortium – the sharing of a common home and a common domestic life, and the right to enjoy each other's society, comfort and assistance.[39]

He was also concerned that the test for capacity to marry not be set too high, noting that:

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.
Equally, we must be careful not to impose so stringent a test of capacity to marry that it becomes too easy to challenge the validity of what appear on the surface to be regular and seemingly valid marriages.[40]

2. 5. 1. 2. No substitute decision-maker may consent to marry on behalf of an incapable person

If a person does not have the capacity to marry that is that, no court or tribunal or substitute decision-maker can consent to marriage on behalf of an adult who lacks the capacity to marry themselves.[41]

2. 5. 1. 3. Injunction to restrain marriage of incapable person?

However, following Munby J’s analysis of the English common law, Australian Supreme Courts because of their parens patriae jurisdiction and certainly their declaratory jurisdiction together with their jurisdiction to make interim and final injunctions, may grant an injunction to restrain the marriage of someone who lacked the capacity to marry.[42]

Munby J dealt with these matters in a case in which Sheffield City Council sought an order to prevent the marriage of a young woman with an intellectual disability to an older man with an extensive history of committing sexual offences, but his judgment is confined to the preliminary issue of the definition of capacity to give a valid consent to marriage.[43]

2. 5. 2. Capacity to marry in Australia

In the English case which is treated as the leading authority on the question of capacity to marry in both England and Australia, In the Estate of Park deceased, Park v Park, supports the proposition that a person has the capacity to marry if they are capable of understanding the contract they are entering into. To do this they must be mentally capable of appreciating that the contract involves the responsibilities normally attaching to marriage.[44] This brief formulation is built upon the statement of Sir James Hannen when President of the Probate, Divorce and Admiralty Division of the High Court of Justice in England that:

[I]t appears to me that the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. It is an engagement between a man and a woman to live together and love one another as husband and wife, to the exclusion of all others.[45]

However, he went on to note that mere appreciation of the words of the promises exchanged was not enough, there had to be a real appreciation of the engagement apparently entered into.[46]

Some Australian cases show that the issue of capacity to marry is not as simple as Sir James Hannen thought, particularly when at least one of the parties has a diagnosis of dementia. Chisholm J of the Family Court of Australia noted that mere awareness of going through a marriage ceremony was not enough; a person must also understand the nature and effect of the ceremony involved. Nevertheless, he was clear from the authorities that the law does not require a person to have a detailed and specific understanding of the legal consequences of the marriage ceremony but that a valid consent involved either a general understanding of marriage and its consequences, or an understanding of the specific consequences of the marriage they were entering into for the person whose consent was in issue.[47]

2. 5. 2. 1. Challenging capacity to marry and the validity of a marriage in Australia

As already suggested, following Munby J’s suggestion in Sheffield City Council v E, it may be possible to obtain an injunction in an Australian Supreme Court to restrain the marriage of someone who lacks the capacity to marry.[48] More often the way the matter has been dealt with has been an application to the Family Court of Australia for a declaration of nullity.[49].A marriage can be declared void for a short list of reasons including that the consent of either of the parties was not a real consent because:

1. the consent was obtained by duress or fraud,

2. a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed, or

3. a party was mentally incapable of understanding the nature and effect of the marriage ceremony.[50]

If it is proved that any one of these grounds is made out, the marriage will be declared void because of the lack of true consent on the part of one of the parties to it. However, that is not an easy matter to achieve as the onus of proof is on the person seeking the decree of nullity. In the case in which he set out his understanding of capacity to marry, AK v NK, Chisholm J dismissed the application for a declaration of nullity because he was not satisfied on the balance of probabilities that the wife lacked consent to marry.[51] He did this even though the couple had first married in 1947 but had divorced in 1993 and, at the time of their remarriage, both were in their 80s. The wife was in a nursing home suffering from dementia and under guardianship. The remarriage ceremony occurred after the husband had taken her away from the nursing home during one of his visits to her. Other family members were unaware of the remarriage for some time.

Chisholm J acknowledged that there was a problem of identifying precisely what it was that the person must understand to have the capacity to marry, a matter that was dealt with in some detail in a case in the Family Court of Western Australia.[52] In that case the husband was aged 82 and had been suffering from dementia. He married the woman with whom he had been living in a de facto relationship for 15 years although for nine months before the marriage they had been living apart. The husband had been in the hospital and the wife continued to live in the home, visiting him nearly every day. She had been his companion since 1965 and had behaved in all respects as a wife. (The husband’s first wife died in 1956.) At the time of the marriage the husband had difficulty recognising his own daughters, with whom he had had minimal contact in the years previously, but had no difficulty in recognising the wife.

McCall J concluded that the husband not only understood that he was getting married but that he understood the nature and effect of the marriage ceremony as it applied to him and the particular person he married. McCall J also noted that:

The nature of the contract, and the responsibilities attaching to the particular marriage must vary from couple to couple. In the circumstances of this marriage the responsibilities were very different to many others. The parties were, perforce, to live apart because of the husband's illness and the inability of the wife to properly care for him. It was a marriage in which the husband would, from then onwards, be confined to living in a hospital or nursing home situation where appropriate nursing care was available to him. The wife, in the meantime, would continue to live in what had been their matrimonial home for 15 years. They had during their time in Mandurah been regarded as husband and wife and the wife had apparently been known in the community as Mrs Brown. Marriage, to them, did not involve living together. Nor did it involve undertaking any new responsibilities by either, or any change in an existing and long standing relationship or situation. As the Reverend Barratt said in this context he assumed the husband knew what marriage was. The marriage was regularising a fact.[53]

In a 2007 case, Mullane J of the Family Court expressed the view that while the Marriage Act 1961 (Cth) does not require parties to a marriage to have a detailed and specific understanding of the legal consequences of marriage, they must have more than a general understanding of what marriage involves, they must have the capacity to understand the effect of the marriage that they are entering into.[54]

That case is a good example of a late remarriage involving a woman who had lost the capacity to give a valid consent to marry. Mrs B was an 82 year old widow with one married son and Mr S was 66 when they participated in a marriage ceremony in September 2004. . Mr S began boarding at Mrs B’s premises when her first husband was still alive and had been engaged for some years to assist with jobs around the house for minimal rent. Although he claimed that he and Mrs B began a relationship while her husband was alive and in a nursing home, the son stated that his mother did not mention any sort of relationship with the boarder and rather complained about him, saying words to the effect of that he was lazy, gambled his money, didn’t help, was not paying his way, would never make anyone a good husband and that she would never marry anyone like him.

From 2002 subtle changes had been noticed in Mrs B’s demeanour. Her son and daughter-in-law noted that she was forgetful, had begun to neglect her appearance and housework and had become suspicious of her family, accusing them of stealing her jewellery and crockery. In mid 2004 a referral was made to the local Aged Care Assessment Team who recorded neglect of personal hygiene, a mini-mental scale examination (MMSE) score of 11/30, poor planning on clock drawing test and an inappropriate, fatuous affect.

Soon after her house was put on the market and then withdrawn. Thereafter contact with her family and service providers was hampered by a change in her telephone number and Mrs B being sequestered at home behind locked gates. The son made an application to the Guardianship Tribunal for guardianship and financial management orders. The day before the hearing, in December 2004, the son found out that his mother had married the boarder.

At the Guardianship Tribunal hearing Mrs B denied having remarried and when the boarder was referred to as her husband she loudly objected to this, saying she was not married to him. Because there had been several failed attempts to have her assessed the Tribunal adjourned the hearing to allow full neuropsychological and psychiatric assessments to be made. The Tribunal made an interim financial management order with the Protective Commissioner as interim manager. She was subsequently assessed and found to have a moderate degree of cognitive impairment probably due to vascular dementia and alcohol abuse. At the next hearing Tribunal appointed the Public Guardian as Mrs B’s guardian.

The son then applied to the Family Law Court to have the marriage declared a nullity. A psychiatrist who conducted a court-ordered assessment of Mrs B noted her to be dishevelled in presentation, perseverative, environmentally responsive (e.g. when showed photos of the examiner’s children she claimed they were her own children) and affectively labile i.e. alternately suspicious, happy, tearful and angry. The boarder often tried to prompt her responses (e.g. he asked her to talk about love). She scored 2/24 on the MMSE. Paranoid delusions about her son and daughter-in-law were prominent. She stated she had two husbands before, whom she loved, and that they both died but she couldn’t remember their names! She acknowledged the boarder as her husband but denied any intimate relationship between the two of them. In response to the question, “what happens when people marry?” she was able to reply: “they live together, help each other, stay together” and that a husband was closer than a friend.

Mullane J found that Mr S had married Mrs B for financial advantage and that was his priority. He was not motivated to act to promote her physical or emotional health, her personal hygiene, her relationships with her family or her financial security. Mullane J issued a decree of nullity. He accepted that Mrs B may have had a good understanding of what marriage was, but he found that she was mentally incapable of understanding the effect of the marriage ceremony and of considering the effect of the marriage on her.[55]

2. 5. 3. The standard and onus of proof when challenging capacity to marry or the validity of a marriage

It is not easy to displace the inference that when the marriage was celebrated the parties understood the nature of the ceremony and the effect of the marriage on them and gave their valid consent. The evidence to displace that inference needs to be strong.

The onus of proving the lack of capacity to consent to the marriage is on the party disputing its validity.[56] However, if there is proof of insanity generally then the burden shifts to the party asserting the validity of the marriage.

2. 5. 4. The assessment of the capacity to marry

As stated earlier, the standard for assessing capacity to marry is based on an assessment of the person’s understanding of the nature and effect of the marriage ceremony. In making such assessments the health care professional should assess the person’s overall mental status and cognitive function with a specific emphasis on the specific cognitive functions of judgement and reasoning. In particular, the expert should ascertain whether a mental disorder has influenced the person’s judgment of or affections towards the proposed spouse and the person’s understanding of the proposed marriage to the proposed spouse, and the responsibilities, duties and effect of marriage to that specific person.

2. 6. Capacity to divorce

In a 1972 case the President of the Probate Division of the High Court of Justice in England, Sir George Baker, stated that the test for a person to give a valid consent to the dissolution of their marriage was “exactly the same as the test for the validity of the contract of marriage” and that, although the husband had a mental illness, he had given a valid consent to the dissolution of his marriage as he had understood the nature of his consent and appreciated its effect.[57] However, Baker P stated that a guardian ad litem could not give such a consent on behalf of an incapable person.[58] In an earlier case Ungoed-Thomas J, sitting in the Court of Protection, took the view that the Court could take a role in the matter.[59] Early in the life of the Probate Division, in 1880, the then President of the Division, Sir James Hannen, specifically considered the matter and held that the court could empower the then equivalent of an administrator to commence proceedings for divorce on behalf of the person whose estate they were managing.[60] His decision was upheld by the full court of the Division.[61]

2. 6. 1. Capacity of substitute decision-makers to initiate or continue divorce proceedings on behalf of an incapable person

2. 6. 1. 1. New South Wales

In New South Wales at least the approaches of Hannen P and Ungoed-Thomas J have been followed. The Supreme Court in its protective jurisdiction may empower an administrator to commence or defend matrimonial causes proceedings on behalf of the person whose estate they are managing with the Court having a supervisory role. When dealing with the issue of whether an administrator could, on behalf of the person whose estate they are managing, commence or defend proceedings relating to the dissolution of the person’s marriage or proceedings to have their marriage declared void, Powell J of the New South Wales Supreme Court considered it well established that, while such litigation when being managed by an administrator or incapable person (for whom an administrator could be appointed) was governed by the rules and practice of the Family Court of Australia, the Supreme Court could make orders and give directions or authorities for the conduct of the litigation in the name, or on behalf, of the person whose estate was being managed. [62]

The Supreme Court has a discretion whether or not to give such give directions or authorities. When deciding whether or not to exercise the discretion, the Court will consider whether the proposed proceedings will be for the benefit of the person whose estate was being managed. The Court will not limit itself to merely material considerations or to considerations relating only of the person whose estate was being managed, but will consider the interests of members of their family.[63] Powell J indicated that the Supreme Court’s jurisdiction applied not only to those whose estates were being managed but also to incapable persons.

Powell J indicated that the following matters may be of importance in particular cases:

1. the wishes of the person whose estate was being managed or the incapable person in relation to the proposed proceedings,

2. the likely effect of the proposed proceedings on their domestic

arrangements,

3. the likely financial consequences if the proposed proceedings were sanctioned, or not sanctioned.[64]

2. 6. 1. 2. Canada

Because the common law on the question of whether or not administrators may continue or commence divorce, annulment of marriage, separation, property settlement or similar post marriage proceedings appears to be developing, it is useful to note approaches being taken in other jurisdictions. In Canada there appear to be two lines of authority. One is to follow Hannen P and allow administrators to commence proceedings for divorce on behalf of the person whose estate they were administering, provided that seeking a divorce was in the best interests of that person, to continue such proceedings begun by that person or to defend such proceedings taken against the person whose estate they were administering.[65] The second line of authority is to allow the administrator continue divorce proceedings commenced by the person now lacking the capacity to continue to conduct them, provided to do so was in the best interests of that person. That line of authority also allows an administrator to commence divorce proceedings on behalf of the person whose estate they were managing but only if they continue to have the capacity divorce which is seen as requiring a lower level understanding and thus capacity than giving instructions in relation to the divorce proceedings.[66]

In the 1997 case setting out the second line of authority, Benotto J of the Ontario Court of Justice noted the opinion of Dr William Molloy, one of the leading medical researchers in the field of decision-making capacity, that different aspects of daily living and decision-making are now viewed separately and that the ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments. Benotto J then went on to identify three levels of capacity relevant to divorce namely, capacity to separate, capacity to divorce and capacity to instruct counsel in connection with the divorce.[67]

Benotto J considered separation as the simplest act, requiring the lowest level of understanding which was the person knowing with whom they did or did not want to live. Next was divorce, which while still simple, required “a bit more understanding”. It required the desire to remain separate from and to be no longer married to one's spouse. While it involved the undoing of the marriage contract, something which has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend, it followed that if marriage was simple, divorce must be equally simple.[68]

In relation to the capacity to instruct a lawyer, Benotto J noted that there was a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. This put the capacity to instruct a lawyer significantly higher on the competency hierarchy than capacity in relation to the other two matters because it involved the ability to understand financial and legal issues.[69]

2. 6. 1. 3. United States of America

The American Courts have recognized that the mental capacity required for divorce is the same as required for entering into marriage. It is also the established position that a mentally incompetent persons cannot sue for dissolution of marriage, either on their own behalf or by a guardian or next friend. The basis for the rule is said to be that the decision to seek dissolution of one’s marriage is so strictly personal that the marriage should not be dissolved except with the personal consent of the party seeking divorce. That consent cannot be given when the party is mentally incompetent.[70] However, the established position is not seen as applying in every case. In a 1985 case the Supreme Court of Washington State commented:

The collected cases often rely upon the truism that a decision to dissolve a marriage is so personal that a guardian should not be empowered to make such a choice for the incompetent. As a general proposition that rationale is valid. However, in these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority is not justified nor in the public interest.[71]

In a 1993 decision, In re Ruvalcuba, the Court of Appeals of Arizona gave considerations more protective of the incapable adult as its reasons for moving away from the absolute rule. The Court said:

To deny incapacitated spouses the means to withdraw from abusive, or merely extinguished marriages, by leaving them captive to the representations of their competent spouses is, at best, to deprive them of their dignity and, at worst, to potentially condemn them to exploitation, physical injury and, possibly even death at the hands of the competent spouse. This is a result that a system of justice should not and cannot sanction. [72]

The Court found nothing in the legislation expressly prohibiting a guardian ad litem from filing and pursuing an action for dissolution of marriage on behalf of an incompetent adult. It also found that such an action may be brought by the guardian (meaning administrator in the Australian context) as it was within an administrator’s general powers to act on behalf of the person whose estate they were administering. [73]

In a 2004 case a Court of Appeal in California held that a conservator (an administrator) with full management and control of an incapable person’s estate could be authorized to act to the extent necessary to protect the property interests of the person whose estate they were administering and could do this by seeking an order for legal separation. They would be under a duty to initiate such proceedings where it was necessary to do so to protect the incapable person’s interests. That outcome could be achieved without having to seek a divorce.[74]


[1]. Peisah C. Brodaty H, Quadrio C. (2006) Family conflict in dementia: prodigal sons & black sheep Int J Ger Psychiatry (2006) 21(5):485-492

[2] This may have changed as a result of the restatement of the standard of proof required to establish testamentary undue influence in Nichoson v Knaggs [2009] VSC 64.

[3] Shulman, K., Cohen, CA., Kirsh F.C., Hull, I.M., Champine, P.R. Assessment of testamentary capacity and vulnerability to undue influence American Journal of Psychiatry 2007; 164(5): 722-727.

[4] Op cit, Peisah C. Brodaty H, Quadrio C. (2006) Family conflict in dementia: prodigal sons & black sheep Int J Ger Psychiatry (2006) 21(5):485-492

[5] Knight B. 1986. Psychotherapy with older adults. Sage: California p155

[6] Neidhardt ER, Allen JA. 1993. Family Therapy with the elderly. Sage: California. p59

[7] Strawbridge WJ, Wallhagen MI. 1991. Impact of family conflict on adult child caregivers. Gerontologist 31: 770-777.

[8] Kazui, H., Hashimoto, M., Hirono, N., et al (2000) A study of remote memory impairment in Alzheimer's disease by using the family line test. Dement Geriatr Cogn Disord, 11, 53-8.

[9] Fromholt P, Larsen SFJ. 1991. Autobiographical memory in normal aging and primary degenerative dementia (dementia of Alzheimer type). Gerontol 46: 85-91

[10] Masterman, D.L., and Cummings, J.L. (1997) Frontal-subcortical circuits: the anatomic basis of executive, social and motivated behaviors J Psychopharmacol, 11, 107-14.

[11] Kertesz, A., and Clydesdale, S. (1994) Neuropsychological deficits in vascular dementia vs Alzheimer’s disease. Arch Neurology, 51, 1226-1231.

[12] Ready, R.E., Ott, B.R., Grace, J., et al. (2003) Apathy and executive dysfunction in mild cognitive impairment and Alzheimer disease. Am J Geriatr Psychiatry, 11, 222-228

[13] op cit, Peisah C. et al,

[14] Ibid.,

[15] Pyke K.D. Bengston V.L. Care more or less: individualistic and collectivist systems of family elder care. Journal of Marriage and the Family 1996; 58, 379-392.

[16] Peisah et al,, op cit

[17] Shulman et al., op cit.,

[18] Cockerill, J, Collier B. Maxwell K. (2005) Legal requirements and current practices In Mental Capacity Ed., Collier B., Coyne C, Sullivan K The Federation Press : Sydney.p 52

[19] Intellectual Disability Rights Service, Questions of Rights – A guide to the law and rights of people with an intellectual disability, Chippendale, Redfern Legal Centre Publishing, 1992, p. 40.

[20] British Medical Association and The Law Society, Assessment of Mental Capacity – Guidance for doctors and lawyers, London, BMJ Books, 2nd. Ed. 2004, p. 100.

[21] Kamel H.K. Hajjar R.R.Sexuality in the nursing home, Part 2:managing abnormal behavior-legal and ethical issues. Journal of American Medical Director’s Association, 2004; 5(S2):S48-S52.

[22] Ehrenfeld M, Bronner G., Tabak, N., Alpert R., Bergman R. Sexuality among institutionalized elderly patients with dementia Nursing Ethics (1999) 6(2): 144-149.

[23] Berger, J.T. Sexuality and intimacy in the nursing home: a romantic couple of mixed cognitive capacities Journal of Clinical Ethics (2000); 11(4): 309-313.

[24] Sabat, SR. Capacity for decision-making in Alzheimer's disease: selfhood, positioning and semiotic people. Aust N Z J Psychiatry. (2005) 39(11-12):1030-5.

[25] Ibid.,

[26] [1997] 2 FLR 426; British Medical Association and The Law Society, op. cit. p. 99.

[27] Re MB (Medical Treatment) [1997] 2 FLR 426, 437.

[28] British Medical Association and The Law Society, op. cit. p. 100

[29] Op cit., Berger et al ,

[30] British Medical Association and The Law Society, op. cit. p. 100

[31] Op cit Kamel H.K. Hajjar RR.,

[32] Op cit., Ehrenfeld et al.,

[33] Op cit., Berger et al.,

[34] Ibid.,

[35] Davis J.K. (2002) The concept of precedent autonomy. Bioethics 16: 114-133

[36] Op cit., Berger et al, p311

[37] Sheffield City Council v E [2004] EWHC 2808 (Fam) [68].

[38] Ibid. [83]-[84].

[39] Ibid. [131].

[40] Ibid. [144]-[145].

[41] Ibid. [100].

[42] Ibid. [[96] and [108].

[43] Sheffield City Council v E [2004] EWHC 2808 (Fam).

[44] [1954] P 112, 127. For recent Australian acceptances of the Park case see, AK v NC [2005] Fam C 1006 and Berrand v Coxall [1999] QSC 352 [13].

[45] Durham v Durham [1885] UKLawRpPro 18; (1885) 10 PD 80, 82.

[46] Ibid.

[47] AK v NC [2005] Fam C 1006 [21], [24] and [29].

[48] [2004] EWHC 2808 (Fam) [108].

[49] Family Law Act 1975 (Cth) ss 51 and 113

[50] Marriage Act 1961 (Cth) s 23B(1)(d).

[51] [2005] Fam C 1006.

[52] Marriage of Brown; re Dunne [1982] FamCA 21; (1982) 8 Fam LR 1.

[53] Ibid. 9.

[54] S. 23B(1)(d0(iii) and Babich & Sokur and Anor [2007] FamCA 236 [249] and [255].

[55] Ibid. [256].

[56] Cooper v Crane [1891] UKLawRpPro 50; (1891), P 369, 376.

[57] Mason v Mason [1972] P 302, 306. In the Estate of Park deceased, Park v Park [1954] P 112 was cited as authority.

[58] Mason v Mason [1972] P 302, 306. See also Masterman-Lister v Brutton & Co [2002] EXCA Civ 1889 [57].

[59] In re W (EEM) [1971] 1 Ch 123.

[60] Baker v Baker [1880] UKLawRpPro 14; (1880) 5 PD 142.

[61] Baker v Baker [1880] UKLawRpPro 34; (1880) 6 PD 12.

[62] Re An Incapable Person D [1983] 2 NSWLR 590, 593

[63] Ibid.

[64] Ibid. 595. For an example from Western Australia see, Re PD [2008] WASAT 13.

[65] Re Schwartz [1947] 2 WWR 979 and Beadle v Beadle (1947) 7 DLR (4th) 762.

[66] Calvert v Calvert (1997) 32 OR (3d) 281 and O (MK) v C (ME) 2005 BCSC 1051.

[67] Calvert v Calvert (1997) 32 OR (3d) 281 [52]-[53].

[68] Ibid. [53]-[54].

[69] Ibid. [55]-[56].

[70] In the Marriage of Kutchins 482 NE 2d 1005 (1985). See also In the Marriage of Burgess 707 NE 2d 125 (1998), but note the views of Cousins J on the need to change the law, 129-130.

[71] In re the Marriage of Gannon 702 P 2d 465, 467 (1985).

[72] 850 P 2d 674, 683-684 (1993).

[73] Ibid. 684.

[74] Michael J v Superior Court 15 Cal Rptr 3d 196, 200 (2004). See also Michael J v Superior Court 2007 WL 1207261.


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