By Nicola Beasley

Mental Capacity issues arise in all sorts of legal matters. In order to give instructions and litigate any type of matter, the client needs to be deemed to have capacity to do so, under the Mental Capacity Act 2005.

In family matters, the Mental Capacity Act most often crosses into the case where the client loses capacity during the litigation, often due to age. We are at a stage now where, due to the rising costs in divorce proceedings, the reduction in legal aid and the need to find “fault” in order to be granted a divorce, we are seeing more and more situations where a couple has separated but has not legally divorced, and they are now elderly and considering how best to manage their estates, when the inevitable time of passing is approaching.

In a situation where older parties are divorcing, if there is any sign that capacity may be an issue, the solicitor has a duty to raise any concerns surrounding capacity to the Judge at the earliest possible stage. The loss of capacity during proceedings can often lead to any decisions made up to that point being voided, resulting in increased legal costs when the process has to begin again.

In the event of concern of lack of capacity, an expert assessment of capacity should be undertaken, specifically focusing on the party’s capacity to undertake certain relevant tasks including the ability to instruct for the purpose of litigation, and to manage their finances after the proceedings.  The tasks will be relevant to the matter at hand. Someone may be able to instruct their solicitor in the proceedings confirming that they want a divorce, but may at the same time be unable to manage their finances after the proceedings.

However, if someone lacks capacity, it does not mean that they are completed restricted from accessing the family proceedings. If deemed to lack capacity under the MCA 2005, then the Family Procedure Rules 2010 Rule 15 provides clear guidelines on how a party may proceed.

A litigation friend should be appointed to act in the best interests of the party who lacks capacity. A litigation friend is expected to make decisions in the best interests of the party, do everything they can to keep the party up to speed, tell them what’s happening in the case and find out their wishes and feelings and work with their solicitor to get advice but also give instructions to them in the other person’s best interest. A litigation friend can be anyone as long as their interests do not conflict with the parties and they are able to make decisions about the case in a fair and competent manner.

If a litigation friend cannot be sourced then the Court of Protection can appoint a deputy to make decisions on the behalf of a person lacking capacity, although these proceedings usually also carry with them further costs.

Lack of capacity affects the divorce proceedings the most. A party cannot rely upon the grounds for divorce for 2 years separation with consent, and cannot engage in any consent orders.

This can cause increased fees for parties who may have been able to mediate/negotiate and reach an agreement previously, who now will be deemed to be unable to do this, therefore causing a full Court proceeding to take place.  It can also cause delay’s where parties want to divorce after 2 years separation with consent, but are deemed to not have capacity to consent, and are therefore forced to wait for 5 years separation without consent.

Solicitors today often advise that parties enter into an LPA when they are at a younger age, in order to be protected should they lose capacity in the future. This would allow the person with the LPA to act in the best interests of the party immediately, and they will have usually discussed with the party their wishes in situations like this during the preparation of the LPA, which allows for the wishes of the party to be more likely fulfilled.

Having an LPA would reduce the risk of wasted costs and delays during family proceedings, should one or more of the parties loose capacity during the proceedings. It is common practice now, when working with an older client, to confirm the person responsible for their LPA prior to proceedings beginning and having that person fully involved throughout for the protection of the interests of all parties.