K J Smith Solicitors

New guidance released to encourage acting as a litigation friend in the Court of Protection

Published: 12 November 2014

A new set of guidelines have been published by the University of Manchester with the aim of trying to encourage more people to take up the role of a litigation friend in the Court of Protection.

The guidelines, commissioned by advocates such as the Department of Health for Independent Mental Capacity Advocates (IMCAs) and relevant person's representatives (RPRs), is a free and useful resource to help people learn more about the Court of Protection in general and the role of a litigation friend.

This new guidance has been described as aiming to "demystify the Court of Protection generally and the role of litigation friend specifically so as to enable more people to consider taking up the role - thereby ensuring the better promotion and protection of the rights of those said to be lacking capacity to take their own decisions."

The Court of Protection and its judges are responsible for deciding whether or not an individual has the mental capacity and what decisions have to be made to protect their best interests in court matters such as care, health and welfare proceedings. They deal with such issues as deprivation of liberty, objections to a lasting power of attorney, amending existing deputy orders and personal welfare cases.

If the individual lacks the mental capacity to make their own decisions in court then they may not be directly involved during the proceedings, this is where they will use a 'litigation friend' to act in court on their behalf. The role of a litigation friend is very important in Court of Protection cases as it allows the most vulnerable people in society to have a voice and be heard in front of the court.

Daryl Crosskill, an Independent Mental Capacity Advocate had this to say about the role of a litigation friend, "Working with solicitors and barristers engaged in public law has given me a sense of the wider commitment to upholding the rights of the vulnerable and of people who lack the capacity to make important decision for themselves. I am impressed by the focus that judges bring to what is in the best interests of the incapacitated person."

He added, "I commend to all concerned the value of the role of litigation friend as a means of enabling access to justice for those we represent as well as enhancing the skills and abilities of advocacy."

The full guidance document can be viewed on the Manchester University website here.

K J Smith Solicitors have an experienced team of family solicitors who have dealt with a number of issues regarding deputyship applications - if someone no longer has the mental capacity to enter into a lasting power of attorney. For more information or to arrange a free consultation, contact us today on 01491 630000 (Henley-on-Thames), 020 7070 0330 (Central London), 0118 418 1000 (Reading), 01753 325000 (Windsor) or 01256 584000 (Basingstoke).

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