Let's be open about mental health and mental capacity in family law

10 September 2019

With 1 in 4 of us around the world being affected by mental health issues and 450million people currently suffering from a mental disorder at some point in their lives, what is much needed is for our health and legal systems to keep pace so that people with mental health needs not only receive the right medical care but their personal rights are aligned and protected. 

This is especially so in the field of family law where, by the nature of the type of issues people are facing, many people find that their mental wellbeing is under pressure and strain.

We could all benefit from enhancing our knowledge about mental health issues, and it follows that clients and their children will benefit from our knowledge of the underlying causes and implications of mental health issues (as well as our sensitivities towards them).

Of course, mental health issues may be long-term or temporary and some may result in a person losing mental capacity in terms of the law, leading to an individual who may no longer be able to make best interest decisions when it comes to their legal affairs. Others will not. Each situation and person is unique.

Either way, it is fundamentally important for adults and children going through the stress of the breakdown of a relationship that their lawyer is alive to the situations where mental health support is needed and helps those who need that help to get it from appropriate specialists and therapists.

It's a regular part of my work to recommend to a client that they get professional psychological support for either themselves or their children. Some people just need general support but for others someone in the family is facing acute health issues and needs more specialist assistance.

It is particularly difficult for parents when the mental wellbeing of their children is affected. For some families there have been long-term mental health issues well before the breakdown. For others, the circumstances of the separation are connected to the health issues. The mental health disorders may or may not be relevant to the legal matters that need to be resolved in the case – such as if a party loses legal capacity. In order cases, whilst the legal position isn't directly affected by the medical issue, it can make managing the legal aspects more difficult.

Whatever the situation, it is crucial that people are well supported and get the right type of help. It's also essential that the lawyer is alive to these issues and how to manage them appropriately. If handled incorrectly they can have wide and devastating impact on the future for the family.

That is why I feel privileged to be chairing the session on legal capacity at the International Association of Family Lawyers (IAFL) European Chapter Meeting in Palma de Mallorca this week.

Together with a panel of experts, including Dr Shruthi Guruswamy (Consultant Psychiatrist, London) and specialist lawyers in the field from other jurisdictions, namely Dr Jeanne Sosson (Belgium), Esther Susin Carrasco (Spain), Oksana Voynarovska (Ukraine) and Kesavan Nair (Singapore), we will take a close look at legal capacity and incapacity within the family law context: to include how the different legal systems deal with capacity to marry, what happens when a person lacks capacity to start or participate in divorce or other family proceedings; temporary and transient incapacity (for example through drugs or alcohol); and permanent incapacity (dementia).

We will also compare the different power of attorney provisions and my fellow partner, Julia Abrey, will be making a virtual appearance to give a broad overview on the Hague Convention on the International Protection of Adults.

There's not enough time to cover fully such important topics but 'it's good to talk' and be open about mental health and capacity issues. In my follow-up blog after the conference, I'll feedback on what I have learned.

The timing is also good, as today everyone in our London office arrived to find oranges on desks and also freshly squeeze juice to buy in support of our charity of the year, Alzheimer's Research UK, which Withers is proud to support.




This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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