How to Manage Capacity Issues in Personal Injury Litigation

Introduction

Capacity issues affect all areas of practice and both claimant and defendant practitioners. Even the most junior lawyer must be trained to recognise signs of potential incapacity to avoid having to unpick settlements many years later.

This virtual classroom seminar will consider those indicators as well as difficult situations where capacity is in dispute on the evidence because a claimant’s capacity is borderline or fluctuates.

Practical advice will be given to help practitioners on both sides manage those cases as well as any litigation friends, or quasi-litigation friends, involved. If a protected party also lacks capacity to manage any money received in litigation there are significant practical implications of involving the Court of Protection and important costs drivers for defendants to ensure that the issue of capacity is thoroughly investigated.

What You Will Learn

This live and interactive course will cover the following:

Introduction to Capacity

• How to identify and deal with incapacity - whether your client or not
• Why capacity matters
• The test in the Mental Capacity Act 2005
• The two distinct capacity questions encountered in PI litigation

The Mental Capacity Act

• Principles
• The test for capacity
• How the courts approach the test in practice

Capacity to Litigate

• Why it is important for both claimants and defendants to determine capacity early:
• Need for Litigation Friend
• Need for approval of a settlement
• Unpicking unapproved settlements
• Indicators of incapacity - what to look out for
• How to investigate capacity and evidence
• Difficult cases:
• Borderline capacity
• Fluctuating capacity
• Litigation Friend issues

Capacity to Manage and Control Money and Affairs

• Capacity for one purpose, but not another?
• The Court of Protection
• Alternatives to the Court of Protection
• Practical steps and evidence needed

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.