Senior associate Andrew Morgan has contributed an article to Solicitors Journal which breaks down key reforms to capacity litigation and what they mean for practitioners acting in civil proceedings.
Also known under CPR 21.1(2) as a ‘protected party’, an individual who lacks capacity under the 2005 Mental Capacity Act is deemed unable to understand and weigh up advice. In this article, Andrew explains that while CPR 21 contains guidance, it does not cater for less clear-cut circumstances, and points to the role a client’s solicitor, the court and other parties have in determining capacity – as well as the current challenges they face in doing so.
In any event, a solicitor faces inherent difficulties in assessing another party’s capacity (on a properly informed basis) when their contact is limited to adversarial communications… the Civil Justice Council is considering these ambiguities.
It remains early days, as the CJC’s awaited recommendations would still need to be considered for incorporation into the CPR, but it is hoped that some of the grey areas facing solicitors can be clarified in due course.
The full article is available to read at Solicitors Journal.
Andrew Morgan is a senior associate in the trust, will and estate disputes team. He specialises in dealing with succession, probate and trust disputes.
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