In cases where one person to a divorce does not have the mental capacity to be able to make decisions and give instructions, a Litigation Friend may be appointed. Family law partner Sarah Walls explains what that is and some of the things that you need to consider.
What is a litigation friend?
A litigation friend is a suitable person who is appointed by the Court to step into the shoes of the spouse without capacity and make decisions on their behalf. For example they could be a family member or friend, but it is important that they do not have any interests which conflict with the person they are assisting. If there is no one suitable to assist the spouse, the Official Solicitor can be appointed as a litigation friend, but this will usually result in greater costs being incurred and more delays than if a suitable alternative such as a friend or family member is able to perform the role.
When should a litigation friend be appointed?
If there is concern about whether someone has capacity, it is very important to take advice before any steps are taken. If it subsequently transpires that the person who made decisions lacks capacity, those steps can be set aside. If it is decided that someone does lack capacity to divorce or reach a financial settlement, an application can be made to the Court for a ‘litigation friend’ to be appointed for that person.
It is important to take advice at an early stage if any proceedings are contemplated. Sarah Walls, Partner in the family team at Stephens Scown, has experience in acting in divorces and financial settlements on divorce where it is necessary for a litigation friend to be appointed.
Agreeing to be a litigation friend can be a big responsibility. When you agree, you are committing to do whatever it takes to protect the person’s legal rights. This may include:
- Attending court hearings;
- Consulting with their solicitor regularly to stay updated on the proceedings, get legal advice from them when necessary, and direct the proceedings so that they are in the other person’s best interests;
- Dealing with all correspondence related to the case;
- Keeping the person you are representing updated on what’s happening to the extent that they can understand so that you can take their wishes and feelings into consideration when making major decisions;
- Approving and signing all legal documents;
- Pay any fees ordered by the court.
As a litigation friend, although you are responsible for attending court whenever there’s a hearing, you cannot act as the other person’s solicitor.