The end of a marriage is always a stressful and difficult time for anyone. The division of the assets is often a source of controversy. Although most people are able to make and communicate their own decisions about what they would like to happen, some people, usually for medical reasons, are not able to.
A person is said to ‘lack capacity’ if they are unable to understand the information needed to make a decision, retain that information and weigh it up as part of the decision-making process; or if they are unable to communicate their decision. The starting point is that everyone is assumed to have capacity, unless otherwise proven by specialist medical evidence.
If a party to financial proceedings arising from a divorce is found to lack capacity to conduct those proceedings, they become a ‘protected party.’ In these circumstances, the Court will require a ‘litigation friend’ to be appointed on the person’s behalf, ideally, a close friend or relative.
In circumstances where this is not possible, the Official Solicitor will assist. The Official Solicitor will ensure that any decisions made on the protected party’s behalf are in his or her best interests.
If a person wishes to ensure that if he or she were to lose mental capacity in the future, decisions about their affairs are made by someone they know and trust, they can complete a Lasting Power of Attorney. This is a legal document in which the person they choose is authorised to deal with their financial or personal affairs.
Joanne Blondin is available to offer advice in relation to all aspects of family law and has experience in representing the Official Solicitor in financial cases on divorce. Martyn Lucas is able to offer advice in relation to the preparation of Lasting Powers of Attorneys and associated matters. Both can be contacted on 023 8022 1344.
