Litigation capacity in family matters
Having capacity to deal with legal matters is becoming an increasingly prevalent issue in light of the greater awareness of mental health in recent years.
It is important to point out that there are different types of capacity and it varies from person to person and from one legal case to another. For example, a person can have capacity to make a will but not manage their financial affairs on a day to day basis. From a family law perspective, someone can have capacity to work and manage their finances but for one reason or another, not have capacity to deal with their divorce or a dispute concerning children. This particular capacity is known as litigation capacity and is highly fact specific.
Where there are issues of capacity, whether its mental capacity or litigation capacity, and you find yourself or a friend/relative dealing with a case before the court there are a number of things that to consider:
1. Are you concerned about capacity? Identifying whether someone does or does not have capacity is a decision for an appropriately qualified expert. Usually this would be investigated by a psychiatrist who after an assessment, will prepare a report for the court.
2. If the expert thinks that the person lacks capacity to conduct litigation then it is necessary to appoint a litigation friend. This requires a formal court application and the court must be satisfied that the person concerned doesn’t have the ability to conduct the case. This acts as a safeguarding measure against a potential abuse of power.
3. Once a litigation friend has been appointed by the court, they will act as if they were the party to the proceedings. It is up to them to make decision on behalf of the person who lacks capacity, to give instructions to a solicitor and to accept or reject settlement proposals on their behalf
4. Who can be a litigation friend? The answer is that almost anyone can be a litigation friend. That person has to act in the best interests of the person who lacks capacity so is often a friend or family member. If there is nobody who can act then the official solicitor will be appointed to act on their behalf, though this is always a last resort.
Once the issue of litigation capacity has been resolved and a litigation friend is appointed then the proceedings can carry on as usual.
If you have doubts about a person’s capacity to conduct legal proceedings then you should contact a specialist solicitor at Coffin Mew to talk through the process in more detail. For more information on this, please contact Bryan Scant in our Family team.