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A lady looking lovingly into her Husband's eyes whilst the husband is in a wheelchair after suffering a brain injury

Mental capacity is the ability to make a conscious decision for yourself. We all need to make decisions – big and small – every day of our lives, and most of us can make these decisions for ourselves. However, acquired brain injury can severely affect a person’s mental capacity including their ability to make decisions, and this can impact their judgement when it comes to considering whether or not to pursue a personal injury claim.

Does the injured person have capacity?

To have capacity a person must be able to:

  • understand information given to them about a particular decision
  • retain the information long enough to be able to make the decision
  • weigh up the available information to make the decision
  • communicate their decision, whether by speech, sign language, or simple movements such as blinking or squeezing a hand.

An individual’s capacity is not fixed but can change over time and vary according to the decision to be made – someone who is able to make simple decisions such as what to eat, may not be able to make complex decisions about managing their finances or their medical treatment.

Bringing a personal injury claim

In law, a person is presumed to have decision-making ability unless it is established they lack capacity and no-one should be treated as unable to make a decision unless all reasonable steps to help them make that decision have been attempted without success.

In these circumstances, an injured person who lacks the capacity to instruct a solicitor to pursue a personal injury claim is deemed to be a protected party and must be supported by a litigation friend who is able to conduct the proceedings and make decisions on their behalf. A relative or friend can act as a litigation friend, although a solicitor can step in to take on this role as a matter of last resort.

Solicitors have a duty to assess an injured person’s capacity. If there appears to be an issue, it should be dealt with as soon as possible and an expert opinion sought. The injured party’s ability to communicate a decision effectively as well as their capacity to understand, retain and weigh information will be assessed by an appropriately-qualified medical practitioner, such as a neuropsychiatrist, neuropsychologist or a psychiatrist who specialises in capacity assessments.

Compensation payments for a brain injury personal injury claim

People who have sustained a brain injury because of an accident and are found to lack capacity may be awarded large sums of money as a result of a personal injury compensation claim. In these cases it is common for the Court of Protection to appoint a financial deputy to manage the injured person’s compensation and wider financial affairs – personal injury trusts can also be used to manage compensation awards.

Case study: Deputyship v Trust

In 2016, Brain Injury Group member law firm George Ide LLP acted for a client who received a personal injury settlement following an accident in which he sustained a serious head injury. The claimant had been left without capacity to manage his own financial affairs and the Court of Protection had appointed a deputy to conduct the litigation on his behalf. However, on settlement of the claim the judge questioned whether it was appropriate for the deputy to remain appointed or whether the claimant’s compensation would be better managed by way of a personal injury trust. The judge ordered that an application should be made in the Court of Protection to consider this point.

In a separate case three years earlier the court had ruled that if a client who lacked capacity to manage his own financial affairs was awarded compensation a deputyship rather than a personal injury trust was always the appropriate mechanism for managing the client’s affairs in the future.

In the 2016 case, the Court of Protection judge questioned this previous ruling, with which he disagreed, and ordered George Ide LLP to assess the pros and cons of managing the claimant’s financial affairs by way of a personal injury trust compared with a deputyship. George Ide were tasked with considering the various powers trustees or a deputy would have in managing his affairs, what each option would cost, and the implications of each if the claimant were ever to regain capacity – a deputyship can be brought to an end if a person regains capacity whereas in this context a personal injury trust could be irrevocable and as such would never allow the claimant to have full control of his compensation, even if he regained mental capacity in the future.

In the 2016 case, which was reported as Watt .v. ABC, the judge decided a deputyship was in the best interests of the claimant and gave a new interpretation to the earlier case – thereafter, the presumption that a deputyship would always be approved by the Court as the most appropriate mechanism for managing a client’s affairs has no longer been the case.

Produced with the assistance of Paul Fretwell, Partner and Head of Personal Injury at George Ide LLP

Paul is a partner and head of personal injury at Brain Injury Group member law firm, George Ide LLP, which has offices in Chichester, Guildford and London. Paul is a member of the Law Society Personal Injury Panel and an APIL-accredited brain injury specialist.

George Ide is one of the UK’s leading brain injury claims law firms; for more information see George Ide’s profile on the Brain Injury Group’s website.

What is the Brain Injury Group?

The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.

How can Brain Injury Group help you?

If you would like advice about bringing a personal injury claim, capacity, deputyships or managing the award of compensation, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:

  1. Call us on 0800 612 9660 or 01737 852203
  2. Email us at enquiries@braininjurygroup.co.uk
  3. Complete this short enquiry form and we’ll get back to you