Understanding Capacity to Litigate: Ensuring Fair and Informed Legal Participation.

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In legal proceedings, some individuals may find themselves unable to fully participate due to mental capacity issues. This is where the Official Solicitor is invited by the Court to step in, they provide instructions for the ‘protected party’ via their solicitor.

What is a Protected Party?

In court proceedings, a ‘protected party’ refers to an individual who lacks the capacity to conduct the proceedings independently. They require a litigation friend to represent them during legal matters. This term applies to both adults and young people who need assistance due to their limited capacity. A protected party must have a litigation friend to conduct proceedings on their behalf.

 What is Litigaton Capacity?

Capacity refers to an individual’s ability to make informed decisions or perform specific tasks.

Litigation capacity refers to an individual’s capability to instruct a solicitor and make decisions regarding their legal dispute.

The MCA 2005 provides legal guidelines for assessing capacity.

Who Is the Official Solicitor?

Why Do We Need the Official Solicitor?

  • When mental capacity wavers, the protected parties interests need to be protected; they may not be able to make decisions from themselves as they are unable to weigh up the information before them and come to a reasoned conclusion. The Official Solicitor ensures fair treatment and advocacy for those who can’t fully participate, and helps that person make decisions that are in their best interests. (Part 21 Family Procedure Rules)

A litigation friend can be applied for in most proceedings; However in Care Proceedings, appointment of the Official Solicitor as a Litigation Friend usually follows an assessment of that parties Mental Capacity through a ‘Capacity Assessment’

Capacity Assessment: The court assesses whether the proposed litigation friend is suitable and has the best interests of the protected party in mind. The starting position is that Adults are presumed to have Capacity, however if there is a concern or a worry the Court may be invited to consider an assessment of that person. A Capacity assessment should be undertaken by a Psychologist or Psychiatrist qualified to conduct a Capacity Assessment. They then provide the Court with a Certificate of Capacity/Non Capacity.

Appointment: If approved by the Court, the court then formally appoints the litigation friend, granting them the authority to act on behalf of the protected party. A hearing may need to take place if the Protected Part does not agree that they lack capacity to Litigate.

The Role of the Official Solicitor in a Nutshell:

  1. Legal Representation: The Official Solicitor is appointed by the Court to represent the interests of a protected party.
  2. Decision-Making: They weigh the evidence, and make decisions that align with the best interests of the party who does not have the capacity to litigate.
  3. Advocacy: The Official Solicitor instructs the Protected Party’s solicitor at court; and also formulates their written evidence. This provides an ‘official’ position to the court. Sometimes instructions may not be aligned with the wishes and feelings of the protected party; but the OS will still always ensure that whatever their official position is; the protected parties wishes and feelings are also explained to the court.