Capacity Disagreements and Litigation Friends

If agreement on any decision cannot be reached on behalf of a person who lacks capacity then it may be necessary for proceedings to be issued in the Court of Protection, so that a decision can be made by a judge.

Usually, the person who is deemed to lack capacity is made a party to any Court of Protection application. As they do not have capacity to instruct a solicitor directly, they will need someone to instruct solicitors for them. That person is known as a ''litigation friend''.

Legal Services - Where disagreement on best interests arises

For those individuals who do not have family members, carers or advocates to act as their litigation friend, it is possible that the Official Solicitor will accept an invitation to act for them.

The role of litigation friend

In the role of litigation friend you will be responsible for providing all instructions to a solicitor on behalf of your family member, and all those instructions must be given in your family member's best interests. It is also possible for you to act on behalf of your family member without a solicitor.

We can provide assistance to you to decide whether you need to make an application to the Court of Protection or, if proceedings have already been issued, we can represent your family member, on your instructions, to ensure that the court knows yours and your family member's views.

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For further information contact us on freephone: 0808 129 3320 or please complete our online enquiry form.

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Julie Cornes - Education Law and Community Care Solicitor - Simpson Millar LLP - London

Julie Cornes
Partner, Court of Protection (Capacity & Deprivation of Liberty)

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