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17 May 2023 | Comment | Article by Cari Sowden-Taylor

Lacking capacity following a traumatic brain injury


Following a traumatic brain injury, many of our clients are found to lack capacity – but what is capacity and what does it mean for our clients?

Mental capacity is the ability to understand and interpret information to make decisions, and communicate any decisions made. As per the Mental Capacity Act 2005 (MCA) “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

There is a 4-stage test for mental capacity, and the inability to make decisions, in accordance with s3 of MCA:

A person is unable to make a decision for himself if he is unable:

  1. to understand the information relevant to the decision;
  2. to retain that information,
  3. to use or weigh that information as part of the process of making the decision, or
  4. to communicate their decision (whether by talking, using sign language or any other means).

If a client fails on any one stage of the test, they will be deemed to lack capacity.

There are different types of capacity, or rather, it should be considered in relation to specific areas or decisions. During the course of a personal injury claim, we will mainly be concerned with two types of capacity:

  1. Litigation capacity – whether a client can make decisions relating to their claim; and
  2. Financial capacity – whether a client can make decisions relating to their finances, and ultimately any compensation they may receive.

There are many other different situations where capacity may need to be considered during a person’s lifetime, such as capacity to put a will in place, get married or make decisions about their care and contact arrangements.

As part of a personal injury claim, a client will undergo various medicolegal assessments with different experts (i.e. doctors and other professionals) who will prepare reports giving their opinion on the injuries sustained. As part of the “neuro” (neuropsychology, neuropsychiatry and neurology) experts’ assessment, they will consider the client’s capacity and confirm whether or not they deem the client to have both litigation and financial capacity. It is possible to lack financial capacity whilst maintaining litigation capacity, and vice versa.

Litigation capacity

If a client is found to lack litigation capacity, we will then look to appoint a litigation friend. A litigation friend is an appropriate adult appointed by the court to make decisions about the client’s claim on their behalf. The litigation friend must act in the injured person’s best interests. Anyone can act as a litigation friend but most commonly it will be a close family member or friend. If there are no appropriate family members or friends to act as litigation friends, a professional can be appointed, such as the Official Solicitor.

Sometimes, due to the nature of the injuries sustained, it may be clear that a client lacks litigation capacity before they are formally assessed. In such instances we arrange for a litigation friend to be appointed immediately. In other cases, if there are concerns surrounding litigation capacity, we look to ensure the client is supported by a family member or friend in making any decisions, before the position regarding capacity is confirmed. A litigation friend can be removed if the client is later confirmed to have or regains capacity.

Once a litigation friend is appointed, we must take our instructions from them. That being said, we still encourage the injured person to be involved in their claim as much as they want and are able to be. Not only is this good practice, but it is a requirement of the MCA that the person lacking capacity is consulted as far as possible in relation to their views about decisions that need to be made.

Financial capacity

If a client is found to lack financial capacity, arrangements will be made to appoint a deputy to manage their property and financial affairs. The deputy is appointed and overseen by the Court of Protection and will be responsible for various tasks, such as paying bills, arranging and managing benefits, managing investments, arranging building works to homes and purchasing properties. The deputy’s input varies on a client-by-client basis, depending on the level of support needed. For example, some clients may be able to manage an annual or monthly allowance, whilst others require any allowance to be paid weekly, if they are at risk of overspending.

At Hugh James, we have a specialist and extremely well-regarded Court of Protection department who can assist with applying to the Court of Protection for a deputy to be appointed and offer advice as to what is involved.

if you would like to speak to one of our specialist serious injury solicitors, then please get in contact with us.

It is possible to have a lay deputy (such as a family member) or a professional deputy (such as the Hugh James Trust Corporation). Our Court of Protection team will discuss who would be most appropriate to act as deputy, though often a professional deputy is required due to the significant level of damages that have been, or will be, awarded. Equally, family members often prefer for a professional deputy to be appointed as it avoids tensions in their relationship with the injured person. The costs associated with a professional deputy are included as part of the personal injury claim.

Conclusion

Mental capacity is fluid. A person may be found to lack capacity, but it’s perfectly possible that they could regain it down the line. No decision is permanent in relation to litigation or financial capacity and the position will be kept under review.

Throughout your personal injury claim, we, together with our specialist Court of Protection Team, will be here to advise and support you on the issue of capacity.

Author bio

Cari is a Partner and Joint Head of the National Serious Injury Team, and specialises in representing adult and child claimants who have sustained life changing injuries such as traumatic brain injuries, spinal injuries, limb loss and polytrauma following road traffic collisions, injuries at work and assaults.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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