A recent Court of Protection ruling addressed the questions of capacity to marry, enter into a prenuptial agreement and also disclosure of the extent of assets managed by a property and affairs deputy. Alex Ruck-Keene analyses the judgment.
The case of PBM v TGT & X Local Authority  EWCOP 6 concerned a man, PBM, who had an acquired brain injury as a result of a deliberate injection of insulin by his father when he was 12 months old. He received a significant compensation award from the Criminal Injuries Compensation Authority in respect of these injuries, although he had made a much greater recovery from his injuries than had been anticipated at the time when his award had been assessed. His compensation award was managed for him by his Property and Affairs Deputy. PBM was described as having coexisting mild/moderate learning difficulties; he had an autistic spectrum disorder (Asperger’s) and epilepsy. He lived in a bungalow in Wales with the benefit of a care package run by a case manager.
Since about 2016, PBM had been in a relationship with his fiancée MVA. They had originally planned to marry in June 2018. However, on 24 May 2018, following an application by the Deputy, the court made an interim declaration that PBM lacked capacity to marry and consequent thereto a caveat has been entered by the Deputy under section 29(1) of the Marriage Act 1949. This had the consequence of preventing PBM from marrying, a step which understandably upset PBM, but which on the substantive determination of the Deputy’s application Francis J held had been justified at the time.
By the time that the matter came to final determination, there was agreement between all (including the Official Solicitor as PBM’s litigation friend) that PBM had capacity to marry and also to enter into a prenuptial agreement, but lacked the capacity to manage his property and affairs (although that steps should be taken by the Deputy to assist him in developing the requisite skills).
Perhaps because of that agreement, Francis J did not spell out in detail the components for capacity to enter into a prenuptial agreement but noted that “there can be no doubt that PBM understands the purpose of a prenuptial agreement and that, with the benefit of careful legal advice, he has the capacity to enter into such an agreement.” Francis J accepted the Official Solicitor’s submission that “there is nothing inconsistent in saying that PBM has capacity to make a decision about a prenuptial agreement but yet may lack capacity to manage his property and affairs generally on an ongoing basis. Understanding and negotiating (with advice) and entering in to a pre nuptial agreement is a one off event, albeit that the effect of the contract negotiated is always binding. Managing property and affairs is not a single event, but a continuum.”
Francis J noted (at paragraph 33) that “it is obviously desirable (from the prenuptial agreement perspective) that [PBM] should know [the extent of his assets]. I make it clear that this is not a reason for him to know or not since the test that I have to apply in relation to that issue is the test of capacity already set out above. However, it is hard to envisage how the disclosure consistent with a successful prenuptial agreement could take place without PBM knowing about the extent of his estate.” Francis J further noted that it was ”axiomatic that it would not be appropriate to tell MVA and not PBM, about the extent of PBM’s assets.” Further “[i]t is, in my judgement, inevitable that when MVA seeks legal advice, as she must, in respect of the prenuptial agreement, those advising her are going to want to know how much PBM is worth. Whilst I am not saying that would be impossible to have an effective prenuptial agreement without disclosure, it is clear, at least on the present state of the law, that full and frank financial disclosure is regarded as one of the key building blocks of a successful prenuptial agreement.”
The motivating factor behind the Deputy’s concern (echoed by the case manager) in terms of disclosing to PBM the extent of his assets was his financial vulnerability. However, as Francis J noted, “Dr Layton was keen to point out, however, the difference between lacking capacity and being vulnerable. Vulnerability is not enough to justify the withholding of the information.”
Francis J was invited not to follow the decision of Foskett J in EXB v FDZ and others  EWHC 3456 (QB) (a conclusion that P should not be informed of the amount of a damages award):
- Mr Rees submits that a decision as to whether a person should be told about the value of his assets is a wholly artificial one. A capacitous person, he submits, does not ask themselves whether they should be made aware of the extent of their assets. If they do not have the relevant knowledge to hand, they have a right to obtain that information should they wish to obtain it.
- Mr Rees asks me to go further still: he submits that where a person has capacity to take a decision and wishes to make that decision, that person must be entitled to any information belonging to them which they require to make that decision. I am not prepared to go so far as to say that Foskett J was wrong, nor am I prepared to say that I disagree with him. It is not necessary for me to do so for the purposes of this case. I do not accept that a valid prenuptial agreement cannot be made without knowledge of the value of one’s assets. Accordingly, the premise of Mr Rees’s submission falls away. I can readily envisage a situation where the judge could decide that somebody has the capacity to enter into a prenuptial agreement but does not have the capacity to know about the extent of their assets. I have already highlighted, above, the obvious disadvantages in this factual state of affairs which is, I suggest, one that we should strive to avoid if at all possible.
Francis J concluded that:
- In spite of the properly articulated argument on behalf of the Deputy, I have formed the clear conclusion, based on the evidence of Dr Layton as well as everything that I have read, that PBM does have the capacity to be informed about the extent of his assets. It is unnecessary for me to decide whether the test is whether PBM can decide whether he should ask about the extent of his assets or whether he should be told. To me this is bordering on a semantic absurdity. Plainly, the moment one is entitled to know about the extent of one’s assets one is almost bound to make the enquiry. I do not think that the distinction is one which will burden people in the real world.
Even if he were wrong about this “semantic issue,” Francis J considered that it would be in PBM’s best interests to be provided with the information, not least because disclosure would accord with the principles of the MCA and the CRPD. Further, “PBM is already aware that he is worth a substantial amount. ‘Substantial’ is a word that means different things to different people, but, as I suggested in discussion in court, it is possible that PBM thinks that he is worth more, rather than less, than the sum that he is actually worth.” As Francis J observed, “[w]hen PBM is informed of the extent of his assets it is important that he is supported emotionally, as well as assisted to build and develop life skills.”
The remainder of the judgment is of specific interest to those considering obligations under the Social Services and Well-Being (Wales) Act 2014, as it consisted of a review of the obligations imposed by that Act. In the instant case, the local authority’s position (with which Francis J agreed) was that it needed to be more robust in ensuring the discharge of its safeguarding obligation under s.126 (akin to s.42 Care Act)), but in relation to discharge of its obligations to assess and meet PBM’s substantive care and support needs:
66 [i] had assessed PBM’s needs, as required by s19(1). It has identified the outcomes that PBM wishes to achieve in day-to-day life, and has concluded that there is nothing additional that could be done to contribute to achieving those outcomes (principally control of his own finances, and the ability to take decisions that flow from that) or otherwise meet his needs. Put simply, the LA asserts that his needs are being met (indeed, possibly exceeded) by his current package.”
This decision of particular interest for the careful way in which Francis J sought to navigate the line between capacity and vulnerability in the context of “substantial” assets being managed on behalf of a person. It is of further interest for the way in which – no doubt because of what appears to have been a strong expert report – the court was able to reach conclusions as to capacity which undoubtedly upheld the principles of both the MCA and CRPD. However, and whilst it made no difference to the outcome to the case, it is perhaps not an entirely semantic question as to whether the test is that the person has capacity to ask for information about their assets or capacity to be informed about their assets. The latter sits oddly with the MCA. The MCA is not concerned with someone’s capacity to have knowledge about something, but with their capacity to take specific decisions. If it is being framed as a decision, one would not normally think of “being informed of one’s assets” as a decision that the person would take – the decision for the person (and to be taken on their behalf if they lack capacity to take it) is to ask for information about their assets, on the basis that if they have capacity and ask, they will receive it as of right (unless, of course, there is some other bar that would prevent disclosure of that information).