Capacity, or no Capacity, that is the question (and the Big Bad Wolf knew it!)

Capacity, or no Capacity, that is the question (and the Big Bad Wolf knew it!)[1]

Once upon a time, there was a little girl who loved to go visit her Grandmother while wearing her red riding cloak. The little girl knew the way to Granny’s home by heart. The only problem was a wolf had been seen lurking around Grandma’s house. The little girl, we’ll call her LRH for copyright reasons, had been told by the other forest creatures that the wolf had designs on Grandma. Ooooh, said LRH, I hope he isn’t going to gobble her up! No, said the forest animals, but he just bought a wedding ring and we saw him heading over there with an officiant. We think he knows that Grandma isn’t well, and she may be open to a marriage proposal, thereby allowing the wolf access to her assets.

“Don’t worry about that” answered LRH, “Anyone who knows Granny knows she can’t make decisions for herself anymore due to an early but severe onset of Alzheimer's, therefore any marriage would be voided.” “Don’t be so sure,” replied the little woodland animals. “We’ve just learned of a case where a man, who had suffered a debilitating brain injury, was hastily married to his girlfriend in a secretive service without telling his side of the family[2]. Remember, there is a presumption of capacity[3] that may be observed.”

While the above story may be somewhat familiar, it is not just a tall tale. It should be instructive to the family law bar because the question of capacity can affect our clients and our practice. As the population ages, the issue of incapacity can arise in numerous ways. It has become increasingly important for lawyers to recognize and understand what it may mean to have a client who lacks capacity. Counsel must be familiar with how capacity issues may affect separating parties, some of whom become litigants, and what counsel’s obligations are to ensure that you are able to aid your client to the best of your ability, both in cases where you have concerns about your own client’s capacity, or the opposing party’s capacity has you concerned.