But I am his deputy, why has the Official Solicitor been appointed as his litigation friend?

New guidance from the Official Solicitor’s office on appointing the Official Solicitor in both personal welfare and property, and affairs proceedings.

Here we provide an example to illustrate the guidance issued in relation to property and affairs proceedings.

John, Sanita and Anna.

John had an accident a couple of years ago and suffered a brain injury, because of this accident, John no longer has mental capacity to manage his property and financial affairs.

Sanita, John’s Wife, was appointed as deputy last year and wishes to gift their adult Daughter Anna, John’s rental property as John no longer needs the income.

Sanita makes an application to the Court of Protection in order to make this gift and is informed that the Court will need to invite the Official Solicitor (“OS”) to act as John’s litigation friend.

Below we explore the details surrounding this.

Why?

The Court has the duty to consider whether or not John can participate in the proceedings and to decide whether he should be a party to them. Here, because John lacks the capacity to conduct the proceedings alone, a litigation friend must be appointed. In property and affairs proceedings, this is usually the OS[1].

How?

The OS will be invited to act as the litigation friend for John by order of the court. This order will be subject to the consent of the OS[2].

Will the OS consent to acting as John’s litigation friend?

Before the OS can consent to acting as John’s litigation friend, the following criteria must be met

1. First, there must be evidence or reason to believe that John lacks capacity to conduct the legal proceedings alone.

Here this would be evidenced by an assessment on John’s capacity, most likely by a medical professional.

2. The OS must be satisfied that John’s costs in the proceedings can be met as and when they fall due. This is usually fulfilled by the OS determining:

• Evidence of liquid funds owned by John. These must be, in the view of the OS, adequate in all the circumstances;
• A professional undertaking in a satisfactory form and of adequate value; or
• The receipt of an adequate sum of money on account from Sanita as the applicant (or another appropriate party, such as one of Sanita’s family members).

If at any time, the OS is no longer satisfied that costs can be met, they will apply to be discharged from the role.

3. The OS should not accept an invitation where it is considered that the costs are likely to become disproportionate and/or it would not be in John’s best interests to incur the costs involved.  

The OS has accepted the invitation to act as John’s litigation friend, what happens now?

On appointment, the court will usually direct Sanita, as the applicant, to serve the OS with a copy of the relevant papers without delay. These will include the application paperwork and any supporting information.

The service must comply with the relevant practice direction of the court, should be electronic where possible and should attach exhibits as separate PDFs appropriately labelled. Sanita will probably want to seek legal advice to ensure that this is done correctly.

Once the documents have been properly served, the matter will be allocated, and Sanita will be given the OS’ contact details.

Sanita wants to make the gift before Anna gives birth to her new baby so that she can use the rental money to help her financially, can the case be marked as urgent? How?

Yes. Sanita should inform the OS of the urgency.

What about expediting the case?

To do this, Sanita should inform the OS of her request. However, doing this may mean that the OS cannot undertake all of the enquiries and investigations they would usually, had John’s case not been expedited. For this reason, a direction from the court is normally required for the OS to expedite a case.

John’s case has now come to an end, what does Sanita do about the costs?

Unless the final order stipulates otherwise, the OS will usually seek costs from Sanita as the person with authority to deal with John’s finances. These costs will first be assessed by the Senior Courts Costs Office. This can be a long process.

What if John dies before the costs are settled?

Sanita should contact the OS’ finance team as soon as possible. She should provide contact information for John’s personal representatives or their instructed solicitor where applicable. It is important that those administering John’s estate hold back enough money to settle the OS’ costs.

What other decisions would the OS get involved in?

The OS will be frequently invited to act as litigation friend for a person lacking capacity in proceedings concerning many decisions including the following:

-  the execution of a statutory will/codicil, making large gifts on behalf of P, including transactions at an undervalue (or ratification of an unauthorised gift that has already been made), the execution of a settlement of assets belonging to P, gratuitous care payments and transactions or investments where one of the parties faces a conflict of interest, such as a purchase by or from the attorney/deputy or a proposed purchase of investments on behalf of P aimed at Inheritance Tax efficiency.

The OS is sometimes invited to act as ‘Advocate to the Court’ in circumstances where a significant and/or complicated point of law might be decided without the court hearing a relevant argument. The Advocate to the Court gives advice on the relevant law and its application to the facts of the case. They do not represent any party. Funding and budgets will play a large part in deciding whether or not the OS will accept this invitation as the costs are put forward by the OS’ small internal budget. Where a third-party offers to fund such, the OS will usually accept.