At Consilia Legal, our team of top divorce lawyers have a wealth of experience dealing with divorce & issues of capacity matters.
An individual needs to have what is known as litigation capacity when involved in any type of family law proceedings including divorce. This means that they need to have the mental capacity to engage in the proceedings as well as be able to give their solicitor clear instructions if they are legally represented.
Assessing capacity
As defined within the Mental Capacity Act 2005, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
Capacity is usually assessed by way of a GP or consultant conducting a capacity assessment and subsequently producing a certificate confirming their assessment.
The medical practitioner’s assessment is based on the individual ability to conduct the specific proceedings in question as opposed to their general ability to make decisions for themselves.
In the event that an individual is found to not have capacity to engage in their proceedings then the court will need to appoint either a litigation friend or the Official Solicitor on behalf of the individual.
Role of a litigation friend/Official Solicitor
A litigation friend is there to act in the best interests of the individual and progress the case for them. This is usually someone that the individual knows, for example, a family member or a trusted friend, however, in the event that no one appropriate is available, the Official Solicitor will be appointed as the individual’s litigation friend.
The litigation friend/Official Solicitor usually instructs a family solicitor when the individual is involved in divorce and associated finance or children proceedings in order to receive specific family law advice to aid them in making decisions in the best interests of the individual.
As long as it is deemed appropriate, the family solicitor may arrange to meet with the individual and explain both their role and that of the litigation friend/Official Solicitor and how everyone will be working together on their matter. It is also an opportunity to for the family solicitor to gain the individual’s personal views and feelings on their matter.
Even if a litigation friend/Official Solicitor is appointed, it is important to keep an individual informed as to the progress of their case and obtain their wishes and feelings on matters as long as it would not cause them any harm. The litigation friend/Official Solicitor will still, however, be the one giving instructions to the family solicitor.
When an individual contests the capacity assessment/their mental state improves
There may be circumstances where an individual disagrees that they lack capacity to conduct proceedings and it is possible for them to contest the capacity assessment. It then falls to the Court to decide whether to endorse the medical practitioner’s capacity assessment before the litigation friend/Official Solicitor is involved in the proceedings.
Similarly, should an individual’s mental state improve, a further capacity assessment should be obtained. If the medical practitioner assesses the individual as having regained capacity then the litigation friend/Official Solicitor must stop acting and all instructions to the family solicitor going forward should be given directly by the individual themselves.
For more information contact one of our offices in Leeds, Harrogate, London, York and Sheffield or email enquiries@consilialegal.co.uk
