Advice on making a personal injury claim on behalf of someone who lacks mental capacity
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Making a Claim on Behalf of Someone Who Lacks Mental Capacity
Anyone who suffers an injury due to negligence may be entitled to make a claim for compensation. However, when the injured party lacks the mental capacity to make decisions about the case, they need a litigation friend to manage the claims process on their behalf.
This is particularly common in claims involving vulnerable adults in care homes, hospital settings, or affected by conditions such as brain injuries, dementia, or severe learning disabilities. In such cases, a litigation friend can pursue compensation on their behalf and ensure their rights are protected.
Call 0800 470 0472 or request a call back to find out how you can make a claim on behalf of someone who lacks mental capacity.
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Can I make a claim for someone who lacks mental capacity?
Yes, you may be able to make a claim on behalf of someone who is unable to understand and make their own decisions about the legal process.
You can initiate a personal injury claim on behalf of a loved one, provided that:
- They lack the mental capacity to conduct the claim themselves.
- Another party owed them a legal duty of care.
- A breach of duty caused them injury or loss.
Mental capacity is assessed in line with the Mental Capacity Act Code of Practice. The sections below explain how the process works in practice.
How does the Mental Capacity Act 2005 apply to personal injury claims?
The Mental Capacity Act 2005 (MCA) sets out the legal framework for determining whether a person can make a personal injury claim for themselves. It also ensures that claimants who lack the mental ability to manage their own case are protected during legal proceedings.
This is how the Act is applied to personal injury claims:
- Claimants are assumed to have capacity unless proven otherwise.
- A diagnosis of a brain injury or condition does not automatically mean they lack capacity.
- A claimant lacking capacity is classified as a protected party.
- It allows a litigation friend to make a claim on behalf of a person who lacks capacity.
- Any decisions made on behalf of someone lacking capacity must be in their best interests.
- Any decision should restrict the person’s rights and freedom as little as possible.
- The court must approve any settlement reached on their behalf.
If a settlement is reached without a litigation friend and court approval when a claimant lacks capacity, it may be overturned.
How is mental capacity assessed under the Mental Capacity Act?
The Mental Capacity Act is designed to protect people who lack capacity to make decisions on their own behalf in a legal claim. This could be due to various issues with the way their brain functions, including a brain injury, dementia, a severe learning disability or a mental health condition.
However, a simple diagnosis of a health condition does not mean they are treated as unable to make a personal injury claim themselves. Instead, the MCA uses a two-stage test to assess capacity:
- The diagnostic test. This stage determines if the person has an impairment of their mind or brain, covering a wide range of problems, such as dementia, psychiatric illness, drug use or brain damage.
- The functional test. This test focuses on whether the person can make a specific decision when it is needed.
Under the MCA, a person is considered unable to make a decision if they cannot do one or more of these:
- Understand important information related to it.
- Retain the information long enough to make the decision.
- Use or weigh that information to arrive at a decision.
- Communicate the decision in any way possible.
If they cannot meet these criteria, a claimant is considered to lack the capacity to make a claim and will need a litigation friend to make decisions on their behalf. Medical evidence from psychiatrists or other healthcare professionals is often needed to support this assessment.
Who can act as a litigation friend for an adult lacking capacity?
A litigation friend for an adult who lacks mental capacity is typically a family member, friend, or professional who can fairly and competently manage the claim in the person’s best interests. They must also have no conflict of interest with the protected party.
Common litigation friends in compensation claims include:
- A parent or legal guardian
- A partner, sibling or another family member
- A close friend
- A Court of Protection (COP) deputy
- A solicitor or professional advocate
- Anyone with lasting power of attorney
The court must approve the appointment of a litigation friend before the claim can proceed. Once approved, the litigation friend must:
- Make decisions about the case
- Attend court hearings if needed
- Instruct solicitors and take legal advice
- Approve or reject settlement offers
- Protect the claimant’s legal and financial interests
What happens to the compensation awarded to a protected party?
If you secure compensation on behalf of a protected party, this must be approved by the court. A judge will review the medical and legal evidence and determine whether the settlement is fair, reasonable, and in the person’s best interests.
Once approved, the compensation is usually paid into one of the following arrangements:
- A personal injury trust managed by trustees. This can help ensure the money is managed for the beneficiary’s care and quality of life and may help protect entitlement to means-tested benefits.
- A Court of Protection-approved account managed by a deputy. Funds held by the deputy can be used to pay for daily living expenses, care costs, and to manage investments in the protected party’s best interests.
Deputies are supervised by the Office of the Public Guardian (OPG) and must submit an annual report on all transactions made.
When and how to become a Court of Protection deputy
If a loved one lacks the mental capacity to manage their own affairs and does not have a Lasting Power of Attorney (LPA) in place, you can apply to the Court of Protection to become their deputy.
This means you gain the legal authority to manage their property and financial affairs, including any compensation awarded to them. In some cases, the court may also grant authority to make decisions related to their health and welfare.
As someone’s deputy, you must:
- Give them the opportunity to make their own decisions.
- Make decisions in their best interests.
- Make sure your decisions restrict their civil and human rights as little as possible.
How to apply to become a deputy:
- Assess the person’s capacity and your eligibility.
- Review and sign the application forms.
- Notify the relevant people, including the protected party and any close family members, by sending them the COP14PADep and COP15PADep forms.
- Submit the application to the Court of Protection.
- Await court approval and receive the court order granting you deputyship.
How does a personal injury claim interact with the Court of Protection?
The role of a litigation friend is limited to the legal process, meaning they will instruct solicitors, gather evidence, and decide on compensation offers. Once a settlement is approved by a judge, the Court of Protection becomes central to how the funds will be handled.
Most often, when a claimant lacks the mental capacity to handle their own affairs, the COP may require the appointment of a deputy to manage their compensation. This is particularly important in high-value claims where the award must cover long-term care needs and daily living expenses.
This ensures greater financial protection, as the deputy is directly supervised by the Court and the Office of the Public Guardian to ensure decisions are made in the person’s best interests.
When is the Official Solicitor appointed as litigation friend?
The Official Solicitor (OS) is a public official who can act as a litigation friend for a protected party. They are appointed as a last resort when a claim needs to be made and:
- No family member or friend is willing or able to represent them.
- There is a conflict of interest.
- There are disputes between potential representatives about how the claim should proceed.
- The injured person is particularly vulnerable and would benefit from independent oversight.
The process usually involves:
- Medical evidence of lack of capacity.
- Proof that no suitable litigation friend is available.
- The OS must give consent to act in the case.
The Official Solicitor will ensure the claim is conducted properly and in the person’s best interests.
What types of claims can be made on behalf of someone who lacks mental capacity?
A litigation friend can make all types of compensation claims on behalf of a vulnerable person, including:
- Council-run care home claims
- Medical negligence claims
- Road traffic accident claims
- Workplace injury claims
- Public liability claims
These claims are most common in cases involving care home residents and looked-after adults, such as:
- Elderly individuals with dementia or cognitive decline
- People with severe learning disabilities
- Adults with mental health problems such as schizophrenia
However, they can also arise after a person suffers a severe brain injury in an accident and loses the capacity to handle legal proceedings themselves.
What is the time limit to make a claim for a protected party?
In most cases, you have three years to make a personal injury claim, starting from the date of an accident or the date an injury is diagnosed and linked to negligence.
However, the standard 3-year limitation period does not usually apply while a person lacks the mental capacity to conduct legal proceedings. This means a litigation friend could start a claim on their behalf at any time while they remain without capacity. If the person regains mental capacity, the three-year period generally starts to run from that date.
While there is no immediate time pressure, it is important to start the process as early as possible to preserve evidence and the recollection of witnesses regarding the events.
Evidence needed to support a claim for someone lacking capacity
To support a claim on behalf of someone who lacks capacity, you need to be able to prove their impairment, the injuries they suffered and the defendant’s negligence. Key types of evidence include:
- A medical report from a psychiatrist, neurologist or another specialist establishing the claimant’s diagnosis (dementia, brain injury, etc.).
- A mental capacity assessment confirming they lack the capacity to handle legal proceedings.
- Medical records and independent reports detailing the personal injury suffered, its prognosis and long-term impact.
- Accident reports documenting when and how the injury occurred.
- Photographs, videos or CCTV footage of the accident, hazards and the harm suffered.
- Statements from witnesses who saw the incident or were aware of unsafe conditions.
- Financial evidence of losses and expenses incurred as a result.
Your solicitor will help you gather all the evidence needed to start and support a claim on behalf of a protected party.
Making a no win no fee claim as a litigation friend
Most claims brought on behalf of a protected party are handled on a no win no fee basis. This means there are no upfront legal costs and no solicitor fees to pay if the claim is unsuccessful. A success fee, which is capped by law at 25% of certain parts of the compensation, is only deducted if compensation is recovered on behalf of the claimant.
Your solicitor will usually manage the entire claims process, including evidence gathering, any Court of Protection application, negotiations and court proceedings, if required.
Call 0800 470 0472 today for a free case assessment or use our online claim form to request a call back. A specialist solicitor will let you know within minutes if you may be able to make a compensation claim on behalf of someone who lacks mental capacity.
