In cases where a Deputy has been appointed as a direct consequence of incapacity caused by personal injury, this should have been included within the Deputy Application and the Court of Protection will have specifically authorised the Deputy to commence proceedings.
In situations where the Deputyship was already in place prior to the incident giving rise to a potential claim, there may not be any specific authority included. In those circumstances, whilst the Deputy may be able to obtain legal status to commence proceedings this may leave them personally liable to meet any costs.
The litigation process requires the Deputy to be recognised as a “litigation friend”, and this can either be by virtue of a court order from the Court of Protection or by following a litigation process of serving notice on various parties and obtaining a certificate of suitability from the courts.
The advantage of the Court of Protection route is that this should then protect the Deputy from becoming personally liable for costs. The challenge, however, is that any litigation bears an inherent risk and the court may first require an assessment of the merits of the case so as to consider the proposed litigation to be in the interests of the person concerned.
If you are acting as Deputy and you believe that the person you are responsible for may have a legal claim, please contact our team.Talk to our legal team
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