Capacity to litigate

The Court of Appeal has considered the question of whether it is fair and appropriate for a Court of Protection Judge to visit the person who lacks mental capacity and about whom the Judge is being asked to make a best interest decision.

Mr Justice Mostyn, sitting in the Family Court, has recently provided further guidance about determining whether a party to litigation has mental capacity to litigate. The consequences of litigating if you lack capacity, or of litigating against a person who lacks capacity, are that the proceedings and any settlements negotiated are likely to be void if the person lacking capacity does not have the benefit of assistance from a ‘litigation friend’, who is someone with full capacity that is able to make decisions for them.

Read the full article here.