The bonds of matrimony can be untied even after death, according to the Supreme Court of British Columbia (SCBC). In a precedent-setting case, the SCBC determined that the marriage of a woman with dementia was not legal and, as a result, the will she made is not valid.
The SCBC decision in Devore-Thompson v. Poulain has significant implications for financial advisors who may find themselves facing issues with what are referred to as "predatory marriages," entered into for money and manipulation rather than to live happily ever after.
Expect to hear more about this topic, cautions Gary Kirk, managing partner of law firm Kirk Montoute LLP in Calgary: "This is a growing problem, and I expect it to become even more significant as the population ages."
The case before Justice Susan Griffin - the first in which a B.C. court set aside a marriage due to incapacity - centred on the 2010 marriage of Donna Walker, who was diagnosed with probable Alzheimer's disease in 2005, a diagnosis that was confirmed later. The argument before the BCSC was that Walker did not have sufficient capacity to enter into the marriage or to execute her 2009 will, which left all of her real estate assets to her husband.
Justice Griffin noted in her lengthy decision that marriage is a contract and, as with any contract, the parties about to sign on the dotted line must be able to understand the agreement they're entering into. However, the decision continued, the legal threshold to enter into a marriage contract is low - lower even than the capacity to manage your own affairs, make a will or instruct counsel.
Despite the legal latitude to enter into marriage, the SCSC decision concluded: "[G]iven her state of dementia, Ms. Walker could not know even the most basic meaning of marriage or understand any of its implications at the time of the marriage, including: who she was marrying, in the sense of what kind of person he was; what their emotional attachment was; where they would be living and whether he would be living with her; and, fundamentally, how marriage would affect her life on a day-to-day basis and in the future."
As well,the BCSC decision states that Walker's dementia "had advanced to such an extent by 2009 that she could neither understand the extent of her property nor who her natural beneficiaries would be. As she did not have a basic understanding of her estate or her natural beneficiaries, she would necessarily be incapable of dividing her estate."
Concerns also were raised about the nature of the marital relationship and whether the husband, Floyd Poulain, had manipulated his wife for financial gain as the relationship grew stronger over the course of several years.
In particular, Justice Griffith had concerns about the husband's intent and his motivation for marriage. Her decision states: "The whole of the evidence leads me to conclude that it is likely that Mr. Poulain manipulated Ms. Walker by suggesting that she could not trust her niece, the plaintiff, and that the plaintiff was stealing from her or trying to steal from her, thereby taking advantage of Ms. Walker's vulnerable mind and inserting himself into her life as her ally."
Such concerns about predatory marriages are increasing, especially in provinces such as Ontario, which has succession laws in place that nullify existing wills upon marriage. Advisors are expected to know how to help clients and their families with questions about protecting financial assets in these situations.
Kirk points out that the safest first step for your client is to name a trustworthy and capable person to hold power of attorney (POA) and who would manage the client's financial affairs. This POA would take effect once the client receives a diagnosis that determines lack of capacity exists.
Such management is, however, subject to review. In Alberta, for example, the Powers of Attorney Act allows: an "interested person" to bring a court application to have decisions made by the attorney reviewed; to have the attorney give an accounting: or to have the appointment of the attorney terminated.
However, notes Kirk: "In some cases, this results in a hollow remedy if the assets have already been dissipated."
In the absence of a POA, an interested person can apply for a trusteeship order, which gives them control over the assets of the incapacitated person. That trusteeship may be reviewed, although such a review will not be initiated by a court. Notes Kirk: "It is up to other family members or interested persons to compel the accounting [of the trusteeship] if it isn't generated as per the order."
Kirk recalls a client with multiple sclerosis who was found to lack capacity but still presented well socially. However, Kirk says: "She actually had no ability to appreciate the value of or deal with her assets, and lacked insight into her problem."
In this case, the client was using an online dating service and met someone who persuaded her after a short online "relationship" to move from Calgary to Red Deer, Alta. "Her family intervened to stop this from happening and got a trusteeship order, although she was furious at them for doing so," says Kirk.
Another option for family members and other interested persons who believe someone's being taken advantage of is to contact the Office of the Public Trustee and ask that they apply for trusteeship or a temporary protection order.
"In particularly egregious circumstances," adds Kirk, "involving the police may be appropriate."
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