Mental capacity and family proceedings

As family lawyers we deal on a daily basis with people in a state of distress, as well as those suffering with mental health issues (at times brought on by the inevitable stress that comes with family breakdown). With changes in social trends we are also increasingly advising elderly clients as the number of ‘silver divorces’ rises.

As a result, family lawyers occasionally find themselves in situations where questions arise as to the capacity of their client. But what checks and balances are in place to ensure that our most vulnerable clients are protected, and what is the procedure to ensure that such clients’ interests are properly represented within proceedings?

Mental capacity

Pursuant to section 2 of the Mental Capacity Act 2005, a person lacks metal capacity if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.

For the purposes of section 2, a person is unable to make a decision for themselves if they are unable:

• To understand the information relevant to the decision;

• To retain that information;

• To use or weigh that information as part of the decision-making process; or

• To communicate their decision (whether by talking, using sign language, or any other means).

As such, the question of capacity must be determined on a decision-by-decision basis. The fact that an individual lacks the capacity to make a particular decision at a particular time does not necessarily mean that they will lack the capacity to make that same decision at a later stage, or indeed that they lack the capacity to make another decision at the point in time in question.

If you are unsure as to whether your client lacks capacity, the first step would normally be to discuss this with the client themselves and ask for their permission to contact their GP to carry out an assessment.

What if my client is found to be lacking in capacity?

To understand how this will affect ongoing proceedings and how to ensure your client’s interests can continue to be effectively represented, reference must be made to part 15 of the Family Procedure Rules.

Rule 15.2 states that a person who lacks capacity to conduct the proceedings (a ‘protected party’) must have a litigation friend to conduct the proceedings on their behalf.

Rule 15.3(1) of the FPR states that until the protected party has appointed a litigation friend: ‘A person may not without the permission of the court take any step in proceedings except –

(a) filing an application form; or

(b) applying for the appointment of a litigation friend.’

This essentially brings the proceedings to halt.

Furthermore, rule 15.3(3) provides that any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

This is fundamental to ensuring that the protected party is not prejudiced pending the appointment of a litigation friend on their behalf.

Who should the litigation friend be?

The expectation of the Official Solicitor is that they will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act. Generally speaking, it will therefore be necessary to look to the protected parties’ friends or family, or a member of their care team, for a suitable candidate. The role of litigation friend can be an onerous one (particularly within contentious family proceedings) and any prospective candidate will need to be informed of this.

Pursuant to part 15.4 of the FPR, a person with authority as a deputy is entitled to be the litigation friend of the protected party (see section 16(2)(b) of the Mental Capacity Act for the definition of deputy). Alternatively, if there is no authorised deputy, a person may act as a litigation friend if (following rule 15.4(3)):

• They can fairly and competently conduct proceedings on behalf of the protected party;
• They do not have any interest adverse to that of the protected party; and
• They undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings (subject to any right they may have to be repaid from the assets of the protected party).

These conditions often mean that in contested family proceedings, other family members may not be the best choice of litigation friend.

A litigation friend may be appointed under an order (made of the court’s own volition or upon application by a party to proceedings or prospective litigation friend) so long as the prospective litigation friend consents (rule 15.6). A litigation friend may also be appointed without an order by filing a certificate of suitability in form COP22 (rule 15.5). In either event, the court must be satisfied that the prospective litigation friend complies with the conditions set out at rule 15.4(3).

The court also has the power under rule 15.7 to direct that a particular person may not act as a litigation friend, to terminate a litigation friend’s appointment, and to appoint a new one in substitution for an existing one.

It should be noted that the identity of any proposed litigation friend is a matter for the person lacking capacity and their legal team. It is not an inter partes issue.

Checks and balances

Part 15 of the FPR should be the starting point for any family lawyer faced with a client (or indeed the spouse of a client) who lacks capacity. The rules provide numerous checks and balances to ensure that vulnerable clients are protected, and careful attention should be paid to these rules when attempting to appoint a litigation friend for a client (either by or without a court order) so as to minimise any delay.

Mariko Wilson is a senior associate at Family Law in Partnership

@FLiPltd

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