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Mental Capacity In Personal Injury & Clinical Negligence Claims

Mental Capacity In Personal Injury & Clinical Negligence Claims

When bringing a claim for personal injury or clinical negligence a person must be considered to have mental capacity to bring the claim.

If it can be demonstrated that a person who is able to understand an explanation given to them in a way that is appropriate to their circumstances i.e. with the use of simple language or visual aids, it is likely they will be considered to have capacity.

It may be the case that a person is said to have capacity to make one decision, but may lack the capacity to make other decisions i.e. they may be able to manage a limited income, but  unable to cope with managing a large sum of money which is intended to last them a lifetime. This is particularly often the case where a brain injury has been incurred.

In order to consider whether a person is able to make a decision for themselves  they must be able to demonstrate that they can:-

  • understand the information
  • retain that information
  • use that information as part of the process of making the decision or
  • communicate the decision.

Where the decision concerned relates to the management of a large sum of money over a period of time, a Claimant must demonstrate the ability to:-

(a) understand the need to plan and manage the money over a long period of time;

(b) devise, with assistance, those plans and

(c)  be able to implement those plans over the long term.

In a case involving a child or a protected party, a Litigation Friend will be needed to conduct the proceedings on their behalf.  A Litigation Friend is often the parent or close relative. The Litigation Friend will consider any offers made and consider and/or accept instructions on behalf of the child/protected party throughout the course of the proceedings.

Where money is recovered on behalf of a child or protected party, the funds will be paid into court and appropriately invested on their behalf.

In some cases it may be necessary to appoint a deputy to look after large sums of money, who will invest any funds received and assist with any large purchases for example, the purchase of a property. The Deputy will also assist with day to day financial management of income and household expenses to assist a Claimant who is not capable of managing large sums of money for themselves.

At Swain & Co we are highly experienced in managing claims involving Personal Injury and Clinical Negligence. If you or a loved one think you may have suffered as a result of Medical negligence or Personal injury, contact our specialist team today to see how we can help.

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