Plan with Care Now Offers Litigation Capacity Assessments

Expanding our mental capacity assessment services to support solicitors and families with legal proceedings.

Plan with Care already provides mental capacity assessments to help establish whether a person can make specific decisions about their health, welfare or finances. We can now also offer litigation capacity assessments, extending our support to situations where there are questions about a person's ability to instruct a solicitor or participate in legal proceedings. Both services are grounded in the principles of the Mental Capacity Act 2005, with assessments tailored to the specific decision in question.

What is a litigation capacity assessment?

A litigation capacity assessment considers whether a person has the mental capacity to conduct legal proceedings, including the ability to understand relevant legal information, instruct a solicitor and make decisions about their case.

A person may have capacity to make decisions about their day-to-day life or finances but have difficulty understanding the complexities of legal proceedings. Equally, a diagnosis of dementia, a brain injury or another condition affecting cognitive function does not automatically mean that someone lacks capacity to litigate.

The assessment considers the individual's ability to make the decisions required, taking into account the support and explanations available to help them understand the relevant information.

What does the assessment consider?

A litigation capacity assessment explores whether a person can understand, retain, use or weigh relevant information, and communicate their decisions.

This may include considering whether they can:

·       Understand the legal proceedings: Grasp the nature of the case, the role of the court and the potential consequences of the proceedings, with appropriate explanation.

·       Instruct a solicitor: Understand the role of their legal representative and provide instructions about their case.

·       Consider options and outcomes: Weigh up relevant information, including the potential risks and benefits of different courses of action.

·       Make decisions about their case: Consider matters such as settlement offers, compromises and other decisions arising during the proceedings.

·       Communicate their decisions: Express their wishes and decisions by any appropriate means.

The assessment is specific to the legal matter in question. A person may have capacity to make some decisions but not others, so conclusions should not be generalised beyond the decision being assessed.

How is mental capacity assessed?

The Mental Capacity Act 2005 establishes a two-stage test.

First, the assessment considers whether there is an impairment of, or disturbance in the functioning of, the mind or brain.

Second, it considers whether that impairment or disturbance means the person is unable to make the specific decision in question. This involves assessing their ability to understand, retain, use or weigh relevant information, or communicate their decision.

All practicable steps should be taken to support the person to make their own decision before concluding that they lack capacity.

The assessment must focus on the individual's abilities in the context of the particular legal proceedings, rather than relying solely on a diagnosis, age or the outcome of previous assessments.

When might a litigation capacity assessment be needed?

A solicitor may request an assessment where there are concerns about a client's ability to understand proceedings, provide instructions or make decisions about their case.

This may arise in a range of circumstances, including disputes involving financial matters, personal injury claims, clinical negligence claims or other civil proceedings.

An assessment can help clarify whether the person can conduct the proceedings themselves or whether further legal steps may be necessary to protect their interests. Where a person is found to lack litigation capacity, their solicitor can advise on the appropriate next steps, which may include the appointment of a litigation friend.

How Plan with Care can help

At Plan with Care, we support solicitors and families navigating complex decisions about mental capacity, health and welfare.

Our existing mental capacity assessment service helps establish whether a person can make specific decisions in their everyday life. The addition of litigation capacity assessments means we can now also support cases where a person's ability to participate in legal proceedings needs to be established.

We understand the importance of approaching every assessment with care, respect and an appreciation of the individual's circumstances. Our aim is to provide a clear, decision-specific assessment that helps inform the next steps.

Are you a solicitor seeking a mental capacity or litigation capacity assessment? Contact Plan with Care to discuss your requirements and find out how we can help.