Assessment of mental capacity

Following a severe brain injury, it is important for the injured person's legal advisers to consider whether the effect of the injury has been so serious that the person is no longer capable of managing his own affairs. If, after proper consideration, it is decided that the person is incapable, two quite distinct actions follow.

1. A 'litigation friend' is appointed to manage the legal process and to make all relevant decisions related to the conduct of the legal case. For example, if the case reaches the stage where the insurance company makes an offer to settle the claim, a decision has to be made whether that offer should be accepted. If the client is not capable of managing his affairs, the litigation friend must do it.
2. Whenever any money is received during the course of the legal case, or whenever the patient has money of his or her own, the Court of Protection has to be appointed to manage that money. It is not uncommon for a person to receive money after an accident (sometimes insurance, sometimes an Interim Payment) and, due to the damage sustained, to spend it inappropriately. The Court of Protection has the power to decide whether a person has capacity to make a particular decision, to make decisions or orders on financial or welfare matters, to appoint Deputies, and to remove Deputies who fail to carry out their duties. The Office of the Public Guardian is responsible for supervising Deputies, and for protecting those who lack capacity from abuse or exploitation.

• Causes of brain injury
• Spinal Injury