28 November 2019 - Events
Does a person lack capacity or are they ‘just’ vulnerable? Can they marry? Can they enter in a pre-nuptial agreement? Should they know how much money they have? These were the questions addressed in PBM v TGT  EWCOP 6.
PBM acquired a brain injury when he was 12 months old as a result of his father injecting him with insulin. He received a ‘significant’ compensation award (we don’t know how much) in respect of those injuries, which is managed by a Property and Affairs Deputy.
PBM is described as having coexisting mild/moderate learning difficulties and an autistic spectrum disorder (Asperger’s) and epilepsy. He lives in with his fiancée, MVA. They have been together for around three years.
PBM and MVA planned to marry in June 2018, but following an application by the Deputy, the Court made an interim declaration that PBM lacked capacity to marry. PBM was upset about the Deputy’s action. The Judge, while sympathetic, said it had been justified at the time.
PBM was clear that he wished to marry, to manage his own affairs and to be told about the extent of his assets, which he knew to be ‘substantial’, but nothing more.
He wrote to the Court: ‘I want to be judged as the person I am[,] yes I have a brain injury but that does not define me. I am a guy in a relationship just wanting independence and to be able to make the choices I want without people telling me I can or can’t… I just want to be happy and not live like this anymore. I want to be in control and make my own choices in life whether that’s about my relationship, money, property or everyday things. I really hope that you get the understanding of me. I’m the man who just wants to have the opportunity to explore life and to be given the chance to prove that I am able to do anything’.
By the time of the hearing, there was agreement between the parties (including the Official Solicitor as PBM’s litigation friend) that PBM had capacity to marry and also to enter into a prenuptial agreement, but that he still lacked capacity to manage his property and affairs. The main issue before the Court was whether PBM had capacity to be informed about the total amount of his estate.
The Deputy’s concern, shared by PBM’s case manager, was about PBM’s financial vulnerability (PBM had, at one point, been conned by a criminal into giving money away). Dr Layton, the consultant psychiatrist who assessed PBM, was keen to point out the difference between a person lacking capacity and a person being vulnerable. Vulnerability is not, the Judge said, ‘enough to justify the withholding of the information’.
But could PBM (and his fiancée) enter in a pre-nuptial agreement without knowing the extent of his assets? The Judge said that it was desirable, but not essential, for a person to know the extent of their assets in entering a pre-nuptial agreement. However, the Judge recognised that 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’. It was not appropriate, the Judge held, to tell PBM’s fiancée but not him about his assets.
The Judge concluded that PBM does have the capacity to be informed about the extent of his assets, but that he should be given the appropriate support to process that information. Importantly, PBM’s property and financial affairs would continue to be managed by his Deputy.
Interestingly, this case was heard in private at the request of PBM himself. PBM also wrote to the Court and met with the Judge to put his view across. The Judge found him to be ‘charming and talkative’. This is a good illustration of law in action.