Montana Gibson, McInnes Wilson explains how medical professionals are often caught at the pointy end of questions of capacity.

Why are matters of capacity important?

We live in a day where divorce is more widely accepted and people often marry for a second or third time during their life. By the time a person gets to their second or third marriage, one or both spouses often have children from their previous marriage and these step children can sometimes get involved in family law separations.

Sometimes, a lack of capacity is seen as a fortunate opportunity to “ditch a spouse”, when one party is secure in the knowledge that the incapacitated party will be unable to defend themselves. 

In other instances, children (from a previous relationship) may seek to sever the relationship between their natural parent and the step parent who has lost capacity. This conduct could, by intention or otherwise, frustrate the estate planning intentions of the parties.

It is not the job of a medical professional to fight these battles. However, it is important to be aware of the circumstances in which such “separations” and divorces may be taking place because you may be called upon to give evidence or assess capacity.

How is a relationship ended once someone loses capacity?

As the population ages, it is increasingly common for one person in a relationship to be moved into a care facility or require in home care. Often, that person has already, or is starting to, lose their capacity. The spouse who still has capacity may move on in life and may enter a new relationship.

In other cases, both parties to a relationship might lose capacity at a similar time and they may be separated by their various care requirements.

In family law, even when both parties to a relationship have capacity, there are still arguments surrounding the ‘date of separation.’ You can imagine how much harder this argument becomes when one or both parties lose capacity.

The case of Jennings[1] is a good illustration of the difficulties involved.

• The husband was 73 years old when State Trustees (the equivalent of the Public Trustee in Queensland) acted as his ‘next friend’ (or litigation guardian) to bring proceedings in the Family Court.
• The husband had been hospitalised for three years at the time. He had suffered from dementia and other health issues for the previous nine years.
• When the husband went to hospital, the wife remained in their home and she would visit him regularly.
• State Trustees commenced proceedings in the Family Court on behalf of the incapacitated husband against the wife seeking a property settlement between the parties.
• The wife denied that the parties had separated and she wanted the application stayed. This meant the wife wanted the proceedings to be ‘put on hold’, until after separation.
• State Trustees ultimately conceded that they had never received instructions from the husband that the marriage was over and that the wife had never formed an intention to separate either.
• Although the Court still had the power to make orders for a property settlement, the wife argued that the Court should avoid doing this because:

1. The Court should seek to protect, rather than promote the downfall of the parties’ marriage; and
2. Until the parties separated, the Court could not properly consider the respective contributions made by them and a final property order could not properly or fairly be made given that the marriage was ongoing.

The Court found that orders finally determining the property issues between the parties would not be appropriate or fair in circumstances where the parties had not formed an intention to separate. 

On the powers of the administrator (as State Trustees was called in this case) to make decisions on personal matters, such as separation, the Court said:

“It strikes me as a perverse proposition that an administrator, appointed to represent a person who through disability is unable to organise his own affairs, could simply “reach a decision” that the person’s marriage has ended. It is not that the administrator points to objective facts nor that it disbelieves the wife’s version to the contrary. It has simply “reached a decision”. In my view, the administrator is empowered to handle the legal and financial affairs of a party but cannot possibly be empowered to handle “the affairs of the heart” or the most intimate aspects of the represented person’s mind and soul.”

It is terrible to think that an administrator or ‘next friend’ appointed to manage an incapacitated person’s affairs could simply make the decision that a person’s marriage has ended.

When does someone require the appointment of a ‘next friend’ or litigation guardian?

There are of course cases where a spouse chooses to separate from his or her incapacitated spouse. There is then no argument about whether separation has occurred. However, the question then arises about who may be appropriate to act on behalf of the incapacitated spouse. This person may be referred to as a ‘next friend’, administrator or litigation guardian.

There are plenty of cases where people do not get appropriate support. We have been involved in the following scenario:

• An elderly man lost capacity.
• A power of attorney of suspicious origin was produced, giving authority for legal and financial affairs to his eldest son.
• The son manufactured circumstances that saw the father’s second wife (the son’s step mother) divorced.
• The son then moved the father to an inferior nursing home and “gifted” himself the greater proportion of the father’s net wealth.
• Divorced and without resources, the step mother delayed seeking legal advice and when she finally did act, it was too late and she was then denied a share of the matrimonial resources.

While the son’s actions were improper in many ways, the point of this story is to illustrate how a divorce can be used as a mechanism to reduce the value of a parent’s estate for a child’s own personal gain. These outcomes may have been avoided if someone appropriate was appointed to act on behalf of the incapacitated father.

If a party to a proceeding lacks capacity, a person must be appointed to conduct those proceedings on behalf of that incapacitated person. The purpose of that ‘next friend’ or litigation guardian is to promote the incapacitated party’s best interests and in doing so, provide instructions to a lawyer in the matter.

When acting in such a matter, the lawyer is likely to approach a medical professional. This could be to provide evidence of past care for the person or if concerns exist about capacity, to undertake a medical examination of the person to assess whether or not they have capacity.

Factors that should be considered include:[2]

1. Whether the person can provide proper instructions and understand the effect of their instructions.
2. Whether the illness only temporarily impairs the person’s capacity or is chronic, thus rendering the person permanently impaired. For example, if a person is responsive to medication for their illness, do you need to advise the lawyer to allow time for that medication to become effective and then make a further assessment?
3. Whether a relative or friend can assist with providing instructions which may be in the person’s best interests. This may only be appropriate if it is not a matter requiring formal instructions with long term effects. Hence it may be irrelevant to family law proceedings.

Who is appropriate to be appointed?

The Federal Circuit Court Rules[3] allow for a person to be appointed as a litigation guardian in a proceeding if he or she is an adult and provided they have no interest in the proceeding adverse to the interest of the person needing the litigation guardian.

The Family Law Rules[4] are slightly different and require a ‘case guardian’ to be:

1. An adult.
2. Have no interest in the case adverse to the interest of the person needing the appointment.
3. Able to fairly and competently conduct the case for the person needing the case guardian.
4. Have consented to act as case guardian.

A person appointed as an attorney (pursuant to an enduring power of attorney) will not automatically be appointed as case guardian and would still be subject to the ‘no adverse interests’ requirements.

A litigation guardian is not required to simply communicate with all relevant parties. They must be able to provide appropriate instructions and make decisions that are in the person’s best interests.

In the case of Grace,[5] a husband’s mother was appointed as his litigation guardian and the wife opposed her appointment.

There was a level of conflict between the wife and the husband’s mother, but the mother argued that it was “no more or less than the conflict that existed between my son and his wife prior to his operation… and that this conflict has been accentuated by the attitude of the wife.” The wife submitted that husband’s mother was maintaining the conflict and attitude of her son pre-incapacitation.

In that case, the Court:

“[could not be] satisfied that the mother can or could control her own feelings towards the wife to such an extent that they would not intrude into or distort her thought processes when considering her son's best interests. I do not have the requisite degree of confidence that the mother could act as impartially as a next friend should.”

Conclusion

We do not assert that a medical professional’s duty of care extends to ensuring that patients, including those without capacity, get family law advice. However, there is benefit in medical professionals being aware that cases such as those above exist and that if you become aware that an individual is not able to adequately protect their legal interests, help is available. 

Family law separations can be extremely damaging to a person’s financial position so it is particularly important that the most vulnerable in our community are able to have their needs identified and properly addressed.

Medical professionals can assist in this process by understanding the points outlined above which include:

• That family law proceedings can still be relevant even when one party to a relationship has lost capacity.
• That it can be appropriate for a ‘next friend’ or litigation guardian to be appointed to represent the incapacitated person’s interests in any family law proceeding.

A medical assessment of capacity in these circumstances is important evidence to help determine if a person requires independent representation or not.

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