The following Private Client practice note provides comprehensive and up to date legal information covering:
Questions of capacity to marry, cohabit, have sexual relations and agree to the use of contraception are clearly highly sensitive and personal issues in which individuals’ Article 8 rights to a personal and family life are strongly engaged. This Practice Note starts by providing an overview of the general legal framework for assessing capacity under the Mental Capacity Act 2005 (MCA 2005) and then goes on to examine the specific tests developed by the courts to assess each of these issues, which reflect the delicate balance between protecting vulnerable individuals and promoting personal autonomy.
Due to the desire to enable vulnerable adults with learning difficulties and other cognitive challenges to enjoy the benefits of married life and/or a sexual relationship, the relevant tests for capacity have been set at a deliberately low level and are widely considered to require a lower level of capacity than, for example, the test for testamentary capacity.
The general legal principles to be applied when determining whether a person has capacity are set out in MCA 2005 and in the MCA 2005 Code of Practice. These principles are summarised below:
a person must be presumed to have capacity unless the contrary is proved. The burden of proof therefore lies on the party asserting that P does not have capacity. The standard of proof is the balance of probabilities
**Trials are provided to all LexisPSL and LexisLibrary content, excluding Practice Compliance, Practice Management and Risk and Compliance, subscription packages are tailored to your specific needs. To discuss trialling these LexisPSL services please email customer service via our online form. Free trials are only available to individuals based in the UK. We may terminate this trial at any time or decide not to give a trial, for any reason. Trial includes one question to LexisAsk during the length of the trial.
To view the latest version of this document and thousands of others like it, sign-in to LexisPSL or register for a free trial.
Existing user? Sign-in
Take a free trial
BREXIT: UK is leaving EU on Exit Day (as defined in the European Union (Withdrawal) Act 2018). This has an impact on this Practice Note. For further guidance on the impact of Brexit on e-money requirements, see Practice Note: Impact of Brexit: Payment services and electronic money directives—quick
An intention to create legal relations is requiredThere are various situations in which a court will hold that an agreement is not binding because, though supported by consideration, it was made without any intention of creating legal relations (see, eg, Blue v Ashley).Did the parties intend to
What is recklessness?In respect of some statutory offences and common law crimes the prosecution are required to prove a mental element of recklessness on the part of the defendant.Recklessness means unjustified risk taking on the part of the accused.Prior to the House of Lords decision in Re G
Brexit: The UK's departure from the EU on exit day ie Friday 31 January 2020 has implications for practitioners dealing with provisions in the CPR relevant to cross border matters, including CPR 5.4C (discussed below). For guidance on the impact of Brexit on the CPR, see Cross border
0330 161 1234
To view our latest legal guidance content,sign-in to Lexis®PSL or register for a free trial.