A person who lacks litigation capacity will be allocated a case worker on behalf of the Official Solicitor to act as their Litigation Friend in Court Proceedings. The Official Solicitor acts as a last resort representative for vulnerable people who lack the mental capacity to representative themselves or instruct a representative in legal proceedings. The Official Solicitor does not replace the solicitor who appears in Court for the person but oversees the Court process and ensures that decisions are made in the best interests of the person involved in Court proceedings.
The Official Solicitor is a professional who is appointed to work alongside the solicitor acting for the person who lacks mental capacity to represent themselves in legal proceedings or provide instructions to their legal representative. Their role is to make decisions on a person’s behalf regarding their welfare and position. They will provide instructions to the appointed solicitor regarding what should happen in the Court proceedings. For such purposes, The Official Solicitor will be provided with the entire Court paperwork and will communicate with that person’s legal representative directly. The Official Solicitor will only decide on issues relevant to the proceedings before the Court. The Official Solicitor will not be involved in any other decisions in that person’s life, such as with whom they should have contact with or how their finances should be managed.
A person will usually engage in a Cognitive and/or Capacity Assessment first by a qualified expert. Such assessments are usually requested by professionals when they have concerns about a person’s cognitive difficulties, learning difficulties, or ability to understand the concerns regarding their children. A psychologist will usually complete a Cognitive and/or Capacity Assessment which will set out their conclusions about a person’s ability to communicate, read, write, make decision, and justify their decisions. The assessment will provide recommendations on how best professionals can work with the individual. On rare occasions, a person may be deemed as lacking mental capacity and a referral will then be made to the Official Solicitor. It is possible that a person could retain litigation capacity throughout the proceedings so the need for The Official Solicitor will always be kept under review.
If a person has been assessed by an expert professional that they lack litigation capacity, this means that they do not understand the Court proceedings or do not have the ability to participate in them in a fair and just manner. This is because of their significant learning difficulties or cognitive deficits. Therefore, the Official Solicitor will be appointed and is known as their Litigation Friend. They will make decisions on behalf of the person for the Court proceedings and will provide their solicitor with instructions. Such examples of this may be that person’s generic position regarding what should happen for their children in the proceedings, instructions for their statements, response to threshold documents and the necessity of any applications for expert evidence.
How can we help?
If your child or children have been made subject to a Child Protection Plan, Pre-Proceedings or Care Proceedings, we understand that this can be very stressful and that is why we are here to help and provide advice. We have experience in assisting parents at all stages of Local Authority involvement. Please contact Johnson Astills at either our Leicester office on 0116 255 4855 or our Loughborough office on 01509 610 312 and ask or a member of the Care Team. Alternatively you contact us through our free online enquiry form or email us at careteam@johnsonastills.com and a member of our team will be happy to assist you.
