Loss of mental capacity in divorce proceedings

Posted: 04/07/2023

Issues of mental health and mental capacity, or the ability to make decisions, are seen frequently when couples separate, divorce, and negotiate a financial settlement. The breakdown of a relationship can be a hugely stressful and difficult time for both parties, and indeed their families, and can often have a detrimental impact on the parties’ mental health.

Where legal proceedings are underway, the ability to be make appropriate decisions and negotiate effectively is even more important.

This article answers critical questions about what it means for someone to lose their mental capacity in the midst of divorce proceedings, and what can be done to address this.

What is mental capacity?

Mental capacity is the ability to make specific decisions when they need to be made. Having mental capacity means you understand the decision you are making, why you are making it, and the impact and outcomes of that decision.

There is a presumption that a person has mental capacity unless it is established otherwise. A person lacks mental capacity if they are unable to make a decision for themselves because of an impairment of, or a disturbance in, the functioning of the mind or the brain. Capacity issues can arise in a wide variety of circumstances, including:

• where someone has suffered a serious brain injury or degenerative illness;
• as a result of alcohol or drug addiction; or
• due to the emotional and psychological impact of dealing with a relationship breakdown, including where there have been instances of domestic violence or coercive control.

Capacity is also 'decision specific', which means that you may have capacity to make some decisions, but not others. For example, it is possible to lack capacity to engage in legal proceedings but still have capacity to manage your financial affairs, or run your company. Capacity can also come and go. You may lack the capacity to make decisions within legal proceedings for a period and then have the capacity to do so again later.

If you feel that you are experiencing any form of mental distress during your divorce and financial remedy proceedings, it is important that you let your solicitor know as soon as possible. Your legal team are obligated to consider whether you have sufficient capacity to understand the proceedings and the advice you are being given. It is also essential that you have the capacity to be able to instruct them to act on your behalf. Any issues regarding your or your partner’s mental capacity must be clarified ahead of reaching a financial agreement or the Court deciding on an appropriate outcome. If an agreement is reached and it later transpires that a party did not have the requisite capacity to make that agreement, then the agreement may be set aside by the court and this could have serious financial and emotional repercussions for both parties. If a decision is made by the court when one party lacks mental capacity then it may be open to appeal.

How do you know someone has lost mental capacity?

If there are concerns that either party has lost mental capacity, then their legal team should take steps as soon as possible to obtain a capacity assessment. If you are in the midst of court proceedings, your representatives may need to ask the court for a short adjournment while the individual’s capacity is assessed, as no steps can be taken until the court is confident that individual has capacity to make decisions for themselves.

If there are concerns that an individual does not have capacity before legal proceedings commence, or during a negotiation process, then it is important for the individual in question to have a capacity assessment before beginning any legal proceedings.

Mental capacity assessments can be carried out by a GP, a treating physician, a nurse or a social worker.

Assessing mental capacity is a two stage test:

1. First, does the individual have an impairment of their mind or brain, whether as the result of an illness or external factors?
2. Second, does that impairment mean the individual is unable to make specific decisions when they need to?

An individual will be deemed unable to make a decision if they are unable to understand the information relevant to the decision, retain that information and be able to use or weigh up that information as part of the decision-making process.

Any assistance or aids that you may require will be taken into consideration by the person assessing your mental capacity. A capacity assessment also considers whether you are likely to regain capacity at any point in the future and whether it would be appropriate to delay proceedings to enable the individual to regain capacity. By way of example, someone who is undergoing treatment for serious anxiety or clinical depression may lack capacity as a result of their treatment, but they could be assessed as being likely to regain that capacity at the conclusion of their treatment.

Are you still able to divorce someone who has lost mental capacity?

Yes. If either you or your partner lose capacity, it is still possible to proceed with divorce and financial remedy proceedings.

A “litigation friend” will need to be appointed to act on behalf of the person who loses capacity. A litigation friend is usually a family member or friend who will act on someone’s behalf in the court proceedings. They will effectively step into the shoes of the individual who has lost capacity. A litigation friend will be required to ascertain the wishes and feelings of the individual who has lost capacity where possible, give instructions to and take advise from the legal team. A litigation friend may also be liable to pay any costs ordered by the Court, however this will depend on the circumstances of the case.

There cannot be any conflict of interest between the litigation friend and the individual who lacks mental capacity, and the litigation friend must be able to make fair and competent decisions that are in the individual’s best interest. The litigation friend will need to file a 'certificate of suitability' with the court, which their solicitor can help with.

If there is no one suitable to act as a litigation friend, then the Official Solicitor will act as a litigation friend. The Official Solicitor is an independent statutory office within the UK government, and will act as a litigation friend of 'last resort'. If they become involved, provision will also need to be made to meet their costs.

When is a litigation friend no longer needed?

If the individual regains mental capacity, then the role of the litigation friend will come to an end. An individual can resume control of their own case by making an application to the court, supported by medical evidence. As soon as that is approved, they will be able to make decisions regarding their own case by communicating their instructions directly to their legal team.

The court also has the power to remove a litigation friend where they have acted negligently or in bad faith, and where their actions can be shown not to have been in the individual’s best interests.

What if an individual no longer has capacity to manage their financial affairs?

If you or your partner are also deemed to lack mental capacity to manage your financial affairs and there is no lasting power of attorney (LPA) in place, then a ‘deputy’ may need to be appointed to manage the property and financial affairs of either you or your partner.

An LPA is a document which covers either your property and financial affairs or health and welfare issues. The LPA gives your chosen representative (referred to as an attorney) the legal authority to make decisions on your behalf if you lose mental capacity, or if you no longer want to make decisions for yourself. Crucially, however, an LPA can only be made when you have capacity. If you would like further information about LPAs or to prepare an LPA, then you can contact our private client team here.

A deputy is a person appointed by the Court of Protection to make decisions for you when you have lost capacity. A deputy can be a friend or family member, but they must be over the age of 18 and have mental capacity to be your deputy. In more complex cases, where there are large sums of money at stake, or complex structures such as trusts, it may be preferable to appoint a professional deputy such as a lawyer. If a deputy is required, our Court of Protection team will be able to assist with this and can be contacted here.

How can I find out more?

If you are in the process of separating or divorcing from someone who you feel lacks mental capacity, or you feel you are struggling yourself, then our family team is available to help you and can be contacted here.

My colleague Danielle Bentley sets out in her article details of the resources available to assist when you are going through family proceedings.

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