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Early assessment is key for injury claimants whose mental capacity is in doubt

09th March 2018

When accident victims sustain a traumatic brain injury, they can lose their capacity to litigate or to manage and control any money that is recovered in damages.

In such cases, a claimant deemed to be a ‘protected party’ must be supported by a ‘litigation friend’ who can conduct the proceedings and make decisions on the claimant’s behalf, subject to the court’s approval when necessary. If the claimant does not have a litigation friend, the Court of Protection is empowered to step in and appoint a ‘deputy’.

A person must be assumed to have capacity unless it is established they lack capacity, however no-one should be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.

Legally, a person is said to lack capacity in relation to a specific matter if at the material time they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, their mind or brain – whether their condition is permanent or temporary.

If a person is unable to understand or retain relevant information or make a decision for themselves, the likelihood is that they lack capacity, although no-one must be treated as unable to make a decision merely because they have made an unwise decision.

As solicitors, we have a duty to assess claimants’ capacity.  If there appears to be any incapacity issue, this should be dealt with as soon as possible and an expert opinion sought from one or more appropriately-qualified medical practitioner such as a neuropsychiatrist, a neuropsychologist, or a psychiatrist who specialises in capacity. The claimant’s capacity to understand, retain and weigh information will be assessed step by step, as well as their ability to communicate a decision effectively.

Substantial amounts of money are often involved in traumatic brain injury claim cases –commonly there is a need to fund the purchase of a suitably-adapted home – and under these circumstances the court is likely to be involved in approving any property purchase.
Litigation capacity cases are complex and not easy to summarise – the key step, however, is early assessment so that if there are any reasons to believe the claimant lacks capacity, the issues can be swiftly addressed.

For more information on litigation friends, deputyship and Court of Protection matters, or to discuss an individual case, contact the George Ide team on 01243 786668 or email us at info@georgeide.co.uk.

Emma Dryden. Solicitor, personal injury department

General, George Ide, News, Personal Injury Blog
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