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Assessing Capacity

Most PI practitioners will have acted for vulnerable clients, such as clients with a head injury or mental illness. Such clients may have sufficient capacity to give instructions on the conduct of the claim and any settlement offers. However, they may not have capacity to manage a large sum of money in their own best interests.

The SRA is particularly concerned about the way that solicitors deal with vulnerable clients as this is an area where mistakes can easily be made with disastrous consequences for the clients.

The Mental Capacity Act 2005 (MCA) applies to people over the age of 16 who lack mental capacity and the Act sets out the rules for safeguarding their interests.

Under the Act, there is an assumption that every client has capacity unless there is evidence to the contrary. The test for capacity is not a blunt “all or nothing” condition but is issue specific.

Therefore even if you have established that the client does have sufficient capacity to give instructions during the claim, it is important to reassess whether the client has sufficient capacity to manage the damages award when the case settles.

If you have any concerns on this issue then it is advisable to request a formal capacity assessment. It may be that the client can manage his own finances with support and should therefore consider appointing an attorney or setting up a PI trust.

If you have concerns as to whether your client does not have sufficient capacity to manage their damages award, we can assist with the assessment of capacity and advice about the options available such as setting up powers of attorney or a PI trust or appointing a deputy.

Click here for more information about the Mental Capacity Act.

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