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A person is assumed to have capacity unless it is established they don’t.  In the realms of Family Court proceedings, capacity is related to adults or children aged 16 to 17 years (who are subject to proceedings) and who are likely to lack capacity at the age of 18.

What is capacity within the context of Court proceedings?

Capacity to conduct litigation is different to a person making other decisions. For example, in AF v SF the husband lacked litigation capacity but not financial capacity.  In HC v FW the wife was found to lack litigation capacity and the husband raised she had capacity because she granted a lasting power of attorney to her son and transferred property to him. In this case, the Court found the capacity assessment had been carried out correctly which did not prevent the wife making other decisions in her life.  A person is not to be treated as being unable to make a decision just because it may not be a wise one.

What should family/ friends look for?

If a family member becomes aware that there are issues of capacity, it is important for them to consider if the party can give instructions to a solicitor and understand the process and the impact of the decisions they make.

If the family member believes there are problems and it needs to be investigated further, they should raise it with the solicitor as soon as possible.  It is something which needs to be dealt with on a sensitive basis because it is unlikely to be received well by the person experiencing these problems.  They may feel unsupported and genuinely believe there is no problem.

Usually, the solicitor for the party is usually the one who would identify issues surrounding capacity.  

The solicitor will look for whether the client can:

  • understand how the proceedings are to be funded;
  • understand the prospects of success and risks of a costs order;
  • The need to give proper instructions;
  • Have the ability to approve a compromise.

In that situation the solicitor may engage with close family members to establish whether capacity is something to be considered.  If there is reason to believe capacity is an issue, the Court must be notified immediately and arrangements must be made for that person to be assessed as soon as possible.

Problems that can occur with capacity

The main problem dealing with capacity is when the party does not have a solicitor.  In which case, family members can encourage that party to seek representation or support them individually.  It is worrying that many people are involved in Court proceedings with no capacity.  Furthermore, it is not guaranteed the Judge or other parties’ solicitor will be aware of it.  Usually, it is only highlighted after knowing that person for a period and even then, it is extremely difficult to confirm one way or the other without a capacity assessment.

What happens if there is reason to believe they lack capacity?

The next step is to ask the party if they would be willing to undertake a capacity assessment. Although there is a cost associated with the assessment, the advantages outweigh the costs especially in high net worth divorce cases.

It is also vital to ensure the other spouse does not exploit the person who lacks capacity.  The solicitor can undertake enquiries throughout the proceedings and take steps to remedy anything untoward that may have happened historically to ensure matters are dealt with in the correct way. 

If the party feels they do have capacity to litigate there are options available to them.  They can challenge the decision in Court or make arrangements to be re-assessed.

What if a family member does lack capacity?

If it is established that person lacks capacity it is important for family members to discuss between them who will take on the role of litigation friend.  This is someone who has no interest in the proceedings and all steps taken by that family member must be taken for the benefit of the family member known as the ‘protected party’.

A person can become a litigation friend without the necessity of a Court Order by taking the following steps:

  • File a document which confirms that they have consent and authority to conduct proceedings in the name of the protected party.
  • The protected party consents.
  • State the grounds on which the protected party lacks capacity and undertake to pay any costs which the protected party may be ordered to pay subject to any right that they may be repaid from the assets of the protected party.

An application can also be made to the Court but similarly, it must be satisfied the family member consents to act and has no interest adverse to the protected party together with an undertaking to pay any costs which may arise subject to those costs being repaid from the assets of the protected party.

What happens if no family members are available to become a litigation friend?

In some cases, there is no one available to take on that role.  If no one is willing or suitable, the appointment of the ‘Official Solicitor’ can be considered.  The Official Solicitor is an officer of the Supreme Court appointed by the Lord Chancellor as litigation friend of the protected party.

However, provision must be made for payment and the Official Solicitor is an absolute last resort.  In cases where no legal aid is available, costs can be covered using protected party funds (if they have financial capacity).  In cases where they don’t, an application to the Court of Protection is required to appoint a Trustee and Financial Deputy.  Alternatively, the other party in the proceedings may give an undertaking to meet those costs so to as avoid an application to the Court which can delay proceedings considerably.

It is the role of the Official Solicitor (litigation friend) and the protected parties’ solicitor to consider each case independently and decide on the best course of action to take.  It is very important to communicate regularly with the solicitor acting on behalf of the other spouse to discuss different options on how the case can settle in the most cost and time efficient manner. It is not in the best interests of the protected party for the proceedings to be delayed unnecessarily for prolonged periods of time which result in more stress and anxiety.

If you believe a person going through a separation has problems with capacity, speak to one of our specialist family solicitors for advice and guidance.

Find out more about divorce and family law with Consilia Legal.