FINANCIAL & LEGAL
I am his deputy so why is the Official Solicitor ACTING AS HIS LITIGATION FRIEND? The Official Solicitor’s office recently issued new guidance about when they will act as litigation friend in personal welfare and/or financial proceedings before the Court of Protection. H ere’s an example of when the Official Solicitor “OS” can be involved.
A WILL FOR JOHN John had an accident and suffered a brain injury. He lacks capacity to manage his financial affairs and to Jane Netting sign his own Will. Wrigleys act as deputy for John and think it would be in his best interests for a Will to be put in place for him. John is a widower with three children, but he has been estranged from one of them for many years. Under the rules of intestacy his estate would be divided equally between them, and this doesn’t feel right. Wrigleys apply to the Court of Protection for the authority to sign a Will for John and we call this a Statutory Will application. In the first order the Court invites OS to act as litigation friend for John and orders Wrigleys to serve them with a copy of the application.
WHY? The Court has the duty to consider whether John can participate in the proceedings and if he should be a party. John lacks the capacity to represent himself so a litigation friend must be appointed. In property and affairs proceedings, this is usually the OS.
HOW? The OS is invited to act as the litigation friend for John and, subject to their agreement, will be appointed by the Court.
2.
The OS must be satisfied that John’s costs can be met, and this is usually fulfilled by the OS determining:
Evidence of adequate liquid funds owned by John; or A professional undertaking in a satisfactory form and of adequate value; or A payment on account.
3.
The OS should not accept an invitation where costs are likely to become disproportionate and/or it would not be in John’s best interests to incur those costs.
The OS has agreed to act as John’s litigation friend, what next? Wrigleys will be informed which solicitor at OS is dealing with the matter. OS act as litigation friend and their role is to represent John and ensure his Will is in his best interests.
John’s health deteriorates, can the case be marked as urgent? Yes. Wrigleys inform the OS of the urgency and provide medical evidence that John’s life expectancy is limited. Although the terms of a Will can be urgently agreed and approved by the Court, this may mean that the OS cannot undertake all usual enquiries. The Will could be vulnerable to challenge after John’s death.
Costs The starting point is to presume that Wrigleys and OS’s costs will be paid from John’s funds. These costs are reviewed by an independent person to determine what is reasonable. ■
WILL THE OS ALWAYS ACT LITIGATION FRIEND? Before the OS can consent to act as John’s litigation friend, the following criteria must be met
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Evidence or reason to believe that John lacks capacity to represent himself.
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Tel: 0114 267 5621 or Email: jane.netting@wrigleys.co.uk Web: www.wrigleys.co.uk sevenstarmedia.co.uk
