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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
Capacity to litigate involves an adult who is a party (or intended party) to proceedings in court.
For example, an individual may bring a civil litigation claim for compensation as a result of injuries sustained in a serious road traffic accident. However, if the injuries sustained include brain damage, there may be doubt as to the individual’s capacity and, specifically, their capacity to litigate and give instructions.
If an individual’s capacity is in doubt, the same two-stage capacity test (mentioned in Blog 1) is used. However, the individual must also be capable of understanding, with the assistance of a proper explanation from legal advisors and other experts (in broad terms and simple language), the matters which will entail their consent or decision in the course of the proceedings. For example, the individual should be able to understand how the litigation is to be funded, the chances of succeeding and the sorts of decisions that may arise in the litigation.
The individual must be able to make a decision based on their understanding of the circumstances. Their own characteristics, such as stability, impulsiveness and volatility, may also be relevant.
What happens if an individual lacks capacity to litigate?
If a person does not have capacity to conduct litigation, they will need a litigation friend to conduct proceedings on their behalf. The litigation friend is then responsible for making decisions about the proceedings in the place of and on behalf of the individual who lacks capacity.
If an individual has a Deputy who has been appointed by the Court of Protection to manage their property and affairs, the Deputy will need to apply to the Court of Protection for authority to conduct litigation on behalf of the individual (except from litigation heard in the Court of Protection). A Deputy must also make an application to the Court of Protection for permission to incur fees in certain legal matters, which is known as an ACC application.
How we can help
We have a wealth of experience making applications to the Court of Protection for Property and Affairs Deputies. If this is something you need assistance with, please contact us.
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