united-states medical marriage consent south-carolina
Can an incapacitated individual consent to marriage?
<p>A friend was to be married on Saturday afternoon.  He suffered a debilitating stroke Saturday morning.
Today he can respond to verbal prompts to move his left hand a bit.</p>
<p>This occurred in the USA in the state of South Carolina but I’m also interested in law related to the issue from other areas.
Could a hospital room marriage take place, given his limited physical ability, that is legally binding in every way?</p>

<p>In <a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a> this would fall within the <a href="https://www.legislation.gov.uk/ukpga/2005/9/contents" rel="nofollow noreferrer">Mental Capacity Act 2005</a> and depends on whether he lacks the <a href="https://www.legislation.gov.uk/ukpga/2005/9/section/2?timeline=false" rel="nofollow noreferrer"><strong>mental</strong></a> not <strong>physical</strong>, <a href="https://www.legislation.gov.uk/ukpga/2005/9/section/3?timeline=false" rel="nofollow noreferrer">capacity to make the decision for himself</a>.</p>
<p>Can he:</p>
<blockquote>
<p>Understand the information relevant to the decision</p>
<p>Retain that information</p>
<p>Use or weigh that information as part of the process of making the
decision</p>
<p>Communicate that decision (whether by talking, using sign language or
any other means).</p>
</blockquote>
<p>If the answer to any of these is&quot;<em>no</em>&quot; then he cannot lawfully give true consent.</p>
<p>Although the Act allows for others, such as a power of attorney, to make decisions on behalf of someone lacking the mental capacity, <a href="https://www.legislation.gov.uk/ukpga/2005/9/part/1/crossheading/excluded-decisions?timeline=false" rel="nofollow noreferrer">s.27</a> specifically excludes the decision to marry.</p>

<p>In <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=26.09.040" rel="nofollow noreferrer">Washington state</a>, a marriage could be challenged</p>
<blockquote>
<p>because a party lacked capacity to consent to the marriage or
domestic partnership, either because of mental incapacity or because
of the influence of alcohol or other incapacitating substances, or
because a party was induced to enter into the marriage or domestic
partnership by force or duress, or by fraud involving the essentials
of marriage or domestic partnership, and that the parties have not
ratified their marriage or domestic partnership by voluntarily
cohabiting after attaining the age of consent, or after attaining
capacity to consent, or after cessation of the force or duress or
discovery of the fraud, shall declare the marriage or domestic
partnership invalid as of the date it was purportedly contracted</p>
</blockquote>
<p>But not everybody has standing for such a challenge. One of the parties can, so can their legal guardians, or existing spouses, or their respective (including mutual) children. The challenger then has to prove that one party was mentally incompetent. Note that subsequent consummation and cohabitation or any other signs of acceptance negates the incompetence argument. There is no requirement that a person be able to read, write, hear or speak to be married in Washington.</p>

<p>According to <a href="https://www.scstatehouse.gov/code/t20c001.php" rel="noreferrer">South Carolina law</a>:</p>
<blockquote>
<p>SECTION 20-1-10. Persons who may contract matrimony.<br />
(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.</p>
</blockquote>
<p>(The prohibited list includes close relatives, people who are already married, people under 16, and people of the same sex, although the last one has obviously been overturned by court decisions.)</p>
<p>So, it would depend on whether the person was still mentally competent. According to <a href="https://law.justia.com/cases/south-carolina/supreme-court/1955/17031-1.html" rel="noreferrer">Thompson v. Moore</a>, 227 S.C. 417 (1955):</p>
<blockquote>
<p>The term &quot;mentally incompetent&quot; is difficult of exact definition. Mental incompetency &quot;in its ordinary meaning imports mental deficiency so great as to render one unable to comprehend or transact the ordinary affairs of life.&quot;</p>
</blockquote>
<p>South Carolina law also has this provision:</p>
<blockquote>
<p>SECTION 20-1-530. Declaration of invalidity.<br />
If any such contract has not been consummated by the cohabitation of the parties thereto the court may declare such contract void for want of consent of either of the contracting parties or for any other cause going to show that, at the time the supposed contract was made, it was not a contract.</p>
</blockquote>
<p>This could come into play since they aren't really cohabitating while one party is in the hospital.</p>

<p>In <a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" rel="tag">france</a>, <a href="https://blogs.mediapart.fr/claudia-canini/blog/040217/la-loi-autorise-le-mariage-extremis-d-un-conjoint-en-fin-de-vie" rel="noreferrer">consent can be presumed from past actions and behavior</a>. In this case, having a wedding planned for later the same week, rings bought, and so on would probably work.</p>
<p>The same principle allows marriage of a dead fiancee.</p>
