Mental Incapacity and Deputyship

Litigation Friend

A claim pursued by a Claimant under the age of 18 or otherwise lacks capacity must be pursued on his or her behalf by a responsible adult.  In any court proceedings the person pursuing the claim on a child’s behalf is described as a “Litigation Friend”.  Generally a parent will act as litigation friend for a child claimant.

Court approval of settlements

Where a person making a claim for compensation is under the age of 18 or otherwise lacks capacity, the Civil Procedure Rules (which govern the conduct of the civil Courts in England and Wales) require any agreed settlement negotiated by the parties to be approved by the Court.

The Court approval process involves an application to the Court and a brief hearing before a Judge.  In addition, the Court will require, except in very clear cases, an opinion from a barrister on the merits of the settlement offered to the injured person.

The Court approval process is usually straightforward and involves a short hearing before the Court.  Usually, the Court will require the litigation friend to attend the hearing and will often ask that the injured person also attends the hearing.  The judge will be presented with copies of any medical reports used to assess the claim and any advice provided by a barrister and will then review whether the proposed settlement is fair.

The Court will look at the amount that Defendant proposes to pay to the injured person and then consider whether it is satisfied that the settlement is appropriate to the nature and scale of the injured person’s injuries.

During this process, the Court also ensures that any money compensation to be paid to a child is appropriately invested safely until the child reaches the age of 18 and, if appropriate, the Court will give directions for the release of funds to meet expenditure to be incurred before the child reaches the age of 18.

Court approval provides a means by which the Defendant obtains a valid discharge from the child’s claim.  It is necessary for the Court to take this role as a person who is under the age of 18 or otherwise lacks capacity cannot enter into a legally binding contract or give a valid receipt for monies received.

Court approval also ensures that the solicitors acting for the injured person are paid their proper costs and no more.

Please contact us if you would like any further details of the assistance we can offer.

Deputy

In very serious cases the severity of the injuries suffered may be such that the Claimant is not going to have the mental capacity to manage their financial affairs.

 “Deputy” is the name given to a person appointed by the Court of Protection to manage the legal and financial affairs of a person who has lost the mental capacity to do so themselves. A Deputy is required where no Attorney has been appointed by either an Enduring or Lasting Power of Attorney. The Deputy can be a family member, friend or professional. Once appointed the Deputy must act at all times in the best interests of the Protected Person.

The Deputy has control of the legal and financial assets of the Protected Person’s financial affairs. The Deputy will manage these to meet the Protected Person’s income and expenditure needs. The Deputy’s powers are set by the terms of the order of appointment issued by the Court of Protection.

The appointment of a Deputy will often be required before the litigation concludes, so that the Deputy can use funds arising from an interim payment of damages for the benefit of the Protected Person as soon as possible.

How we can assist

We can assist in advising individuals appointed as Deputies.

Our team also includes experienced professional Deputies. They can be appointed as Deputy where there is no suitable family member or where the family or the Court prefer that a professional be given the responsibility of managing the financial affairs.

A professional Deputy may have the advantage of being granted wider powers by the Court of Protection than would be given to a family member may be more limited. This may make things much simpler when dealing with the Protected Person’s affairs. The involvement of a professional Deputy may also enable parents of a brain injured child to focus on their role as parents rather than taking on the duties of employer, financial adviser, accountant etc.

Our experience in dealing with clients who have complicated needs arising from brain injury is vital in ensuring their needs are met from any award of compensation and that the cost of meeting those needs is reflected in the size of any award.

Issues faced by a Deputy

The financial needs of those who have suffered a brain injury may be extremely complicated and their needs may continue for many years. The level of injury can vary from mild learning difficulties to complete dependency and the sums involved can range from a few hundred thousand to several million pounds.

The Deputy is likely to play a significant role in the life of the brain injured person and may have to deal with a range of issues that may include:

• Accommodation
• Employing carers
• Liaising with an appointed case manager to arrange therapy, education or employment
• Managing an investment portfolio
• Tax issues
• Completing reports for the Court of Protection
• Applications to the Court of Protection for Court orders
• Dealing with any other legal or financial issues as they arise.

Please contact us if you would like any further details of the assistance we can offer.

 

Brighton office

Tel 01273 775533

Eastbourne office

Tel 01323 730543

East Grinstead office

Tel 01342 310600

Forest Row office

Tel 01342 822112

Lewes office

Tel 01273 477071

Seaford office

Tel 01323 891412

Pulborough office

Tel 01798 875358

Storrington office

Tel 01903 743201

Gatwick office

Tel 0800 84 94 101

Primary Contact

John  Lingwood
John Lingwood

Partner

T | 01273 223215
E | email