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September 7, 2022

Legal Update
Svana M. Calabro

Capacity and Legal Decision Making: Balancing Competing Interests to Preserve Individual Autonomy

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It is no secret that marriage and divorce can be life-changing, and affect everything from finances, to estate planning, to property ownership, to living situations. Anyone considering getting married or divorced needs to fully understand their options and how their decisions might change their life going forward. So, what happens when physical or mental barriers prevent someone from being able to make that analysis?

One Massachusetts probate and family court judge recently faced this issue head-on by posthumously annulling a man’s marriage after concluding that the man lacked the mental capacity to get married. In support of his decision, the judge cited a medical report issued days before the man’s wedding, which stated the man was unable to make decisions about his health and finances. The judge also stressed that the man’s wife had to place a pen in his hand to sign the marriage intention form, and that the man kept his eyes closed throughout the wedding ceremony, only responding to the wedding vow prompts with grunts. The judge found that the severity of the man’s physical and cognitive impairments prevented him from being able to validly consent to the marriage.  

This case highlights the tension between the conflicting goals of respecting an individual’s right to make legal decisions for themselves while also preventing the exploitation of an individual struggling with mental or physical health issues.

What is legal capacity?

In a broader sense, capacity is the ability to make and communicate decisions about daily life, including where to live, when and how to seek medical care, and how to manage finances. When people talk about legal capacity, they are talking about ensuring that an individual meets some minimum standard of competency necessary to make an important decision. Some life decisions, such as getting married, writing a will, or negotiating a separation agreement have legal consequences. A person’s decision may be set aside if it is determined that they do not have the legal capacity to make that decision.

A person may lack the capacity to make legally binding decisions if they are not able to understand: 

Many factors can impact a person’s legal capacity, including age, cognitive impairment, mental or physical health struggles, and drug or alcohol use.  

Capacity is specific to each decision, meaning that someone might be able to make one type of decision but not another. For example, someone might have the legal capacity to make decisions about their living situation but not about their finances. An individual’s capacity can also fluctuate from day to day, such that they have capacity to make certain decisions during lucid intervals but do not have capacity at other times. Because capacity exists on a spectrum, it is very rare for someone to lack the capacity to make any decisions.  

What happens if someone does not have the capacity to make legal decisions? 

In the context of a family law case, parties are negotiating significant property rights. If one party lacks the capacity to understand those rights, they will not be able to participate in a meaningful way in the negotiation process. For that reason, if someone has concerns about a party’s capacity, they can ask the court to appoint a guardian ad litem (GAL). A GAL is a professional with expertise in social work, psychology, or the law, who helps the Court to understand the extent of a party’s capacity.  

If the court needs more information about an individual’s capacity, they may appoint the GAL as an investigator. In this situation, the GAL will interview the party, review relevant medical records, and make recommendations to the judge. The judge will typically limit the GAL’s investigation to a narrow topic to preserve the individual’s autonomy in other areas. If the GAL determines that the person has the capacity to make decisions about the relevant subject matter, then the matter can proceed as it normally would.  

Alternatively, if the court determines the individual does not have the capacity to make decisions about the relevant subject matter, the judge can appoint the GAL as a “next friend” or advocate for the party. The GAL would then stand in the place of the party during the case and make decisions based upon the best interests of the party and GAL’s understanding of the party’s desires. 

Individual autonomy has always been a core tenet of our legal system, and courts must try to strike a balance between protecting individual choice and the need for informed, uncoerced decision-making. Diminished capacity does not mean diminished representation in the court process. It simply means that additional procedural safeguards may be required.

If you have questions about how capacity might affect your family law case, please contact the attorneys from Sugarman Rogers’ domestic relations practice group.