.png)
The Capacity to Litigate
The purpose of a Litigation Mental Capacity Assessment is to determine if an individual is capable of legally representing themselves, or if they need aid in making decisions and taking action during the course of a case. This assessment will evaluate their capacity to do so. There may be a need for a litigation friend if it's determined that they lack the mental capacity to proceed independently.
What the law says
In the United Kingdom, the law recognises that individuals have the right to participate in legal proceedings if they have the mental capacity to do so. Mental capacity is a person's ability to make decisions and understand the consequences of those decisions. A person is considered to lack mental capacity if they are unable to make a specific decision at the time it needs to be made due to an impairment or disturbance of the mind or brain.
When it comes to capacity to litigate the official solicitor is very clear on the information that a person needs to be able to understand. This includes:
-
Capacity to make decisions that arise in litigation
-
Capacity to understand advice
-
Capacity to understand compromise
Your Questions Answered
-
What does capacity to litigate mean?
Litigation capacity relates to an individual's ability to participate in and understand the legal process. This capacity determines how well they can prepare for and conduct their case in court proceedings.
-
What to expect
Our assessments usually take around an hour, and our friendly, experienced social workers do their best to make sure it's a comfortable and relaxed experience. We're accredited expert mental capacity assessors, so you're in good hands.
-
What's Included in the assessment?
Everything necessary is included, an assessment either face to face or via video link as well as a corresponding report. Where necessary our Social Workers will complete additional assessments such as a Montreal cognitive assessment and a financial decision tracker to strengthen their reports at no additional cost.
-
Why Choose Nellie?
We have worked with official court solicitors to create a bespoke assessment report to assess and record the mental capacity of an adult to engage in court proceedings in the Family Court, the High Court, a county court, or the Court of Appeal.
-
Who can complete a mental capacity assessment?
In cases involving complex or major decisions, you may need to get a professional opinion. The assessor must be an impartial, qualified professional, such as a doctor, nurse, or social worker.
-
Can we complete video-link or face to face assessments?
We can visit you in your own home or any other suitable space you feel most comfortable and at a time of your choosing. In those instances where face-to-face assessments aren't viable, we offer a fully secure video-link assessment service.
Accreditations
Social Work England is a specialist body taking a new approach to regulating social workers in their vital roles. All of our Social Workers are registered with Social Work England for your peace of mind.
Our assessors are accredited Montreal Cognitive Assessment (MoCA) assessors with specific experience in completing capacity assessments and specialist reports.
All of our assessors have undergone extra training to become accredited financial vulnerability experts according to Lichtenberg standards, so they can provide even more detailed reports on mental capacity.
CASE STUDY
Trevor suffered a fall at work resulting in an acquired brain injury; Trevor's life changed from that moment onwards. He was no longer able to work and relied upon his parents for support in managing his day-to-day activities, such as shopping.
Trevor had spoken to a solicitor to start legal proceedings against the company he had been employed by at the time of the accident. Due to his brain injury, however, Trevor's solicitor required an assessment of his capacity regarding to enagge in court proceedings.
Trevor was anxious about the litigation assessment as he felt since the accident, people had treated him as incapable; however, he found the mental capacity assessment to be a relaxed affair completed at a pace that suited him.
Trevor engaged well with the assessor, and although he needed a little extra time to answer the assessor's questions about engagign in the court process, he was able to evidence his understanding of the relevant information as outlined by the Official Solicitor.
With this report, Trevor's solicitor was able to move forward with the litigation and take instruction directly from Trevor as opposed to an attorney or litigation friend.
Everything you need to know about Capacity to Litigate
As we age, our mental abilities can start to decline. It's a fact of life. But when it comes to legal matters, mental capacity is a crucial factor. In order to make important decisions, such as signing a contract or creating a will, a person must have the mental capacity to understand the consequences of their actions. This is where litigation capacity assessments come in.
Frequently Asked Questions
Who can complete a Litigation assessment?
The Deputyship applications guidance document from the government specifies that Registered Professionals, including Doctors, Psychiatrists, Mental Health Professionals and Social Workers are qualified to completemental capacity assessmentss. All of our assessors are qualified Social Workers registered with Social Work England and have completed additional training as Montreal Cognitive Assessors to strengthen their reports.
How long does a capacity assessment take?
When determining the amount of time required to assess an individual's capacity to make decisions, the complexity of the decisions being assessed and the subject's cognitive impairment are both critical factors. Typically, one assessment session can be expected to last between 60-90 minutes for a single decision.
What is the test of capacity for litigation?
When it comes to capacity to litigate the official solicitor is very clear on the information that a person needs to be able to understand. This includes:
-
Capacity to make decisions that arise in litigation
-
Capacity to understand advice
-
Capacity to understand compromise
What is a Certificate as to capacity to conduct proceedings?
A Certificate of Capacity to Litigate is a standard form used to record the results of an assessment conducted to determine whether an adult party or intended party of proceedings in the Family Court, the High Court, a county court, the Court of Protection or the Court of Appeal has sufficient mental capacity to conduct those proceedings. This involves expertise in specific legal knowledge and activities; if a lack of litigation capacity is found during this assessment, it must be explained as part of completing this form.
Can a solicitor complete a mental capacity assessment?
Your solicitor may identfiy that a mental capacity assessments is required but the assessment and certificate should be completed bya suitability qualified proffesional such as a Social Worker.
Those who complete a capacity to itigate assessment and certificate should be familiar with the relevant case law, the capacity assessment process, and appropriate government guidance.
Who can assess mental capacity?
The court of protection advise that those assessign capcity for the court of protection
may be a registered:
– medical practitioner, for example the GP of
the person to whom the application relates;
– psychiatrist
– approved mental health professional
– social worker
– psychologist
– nurse, or
– occupational therapist