The importance of capacity in legal proceedings


There are several types of dementia, the most common being Alzheimer’s Disease and Vascular Dementia. Dementia affects everyone differently and some of the changes that people with Dementia notice include problems with thinking, memory and concentration. These symptoms can also impact on someone’s ability to have capacity to make decisions in their life.

In the Family Court, judges are mindful of ensuring that people involved in family law proceedings have capacity to make decisions throughout the proceedings. In order to do so, a person should be able to:

  • Understand information about that decision;
  • Remember the information long enough to help them make the decision;
  • Use the information to think about the different choices available to them and weigh up the positives and negatives of each choice; and
  • Tell people about the decision they have made.

Your capacity will not be checked if your position you take or a decision you make is one that other people disagree with. There must be a reason that the court may think that you are having difficulty with one of the four points listed above in order to make proper decisions. This does not mean that you are not able to make informal decisions in other areas of your life.

Whilst the law automatically assumes that everyone over the age of 16 has capacity, there are certain situations where a judge may want this to be assessed by a professional. You can decide not to have your capacity checked within court proceedings but if you decide not to, it would be for the court to make a decision about your capacity on the evidence before it.

Capacity Assessment

Someone’s capacity can be assessed by a psychologist, psychiatrist or even their GP.  If the medical expert determines that you have capacity, then you can continue as you did before. If the medical expert decides that you need some help to make decisions, this will be offered to you.

If the assessment determines that you are unable to make decisions yourself, even with extra help, it will be considered that you do not capacity at this time. In this case a litigation friend will be appointed on your behalf by the judge, this could be someone you know, such as a family member or friend or it could be the Official Solicitor, who are independent people and take on this role professionally. Your views will still be heard, but your litigation friend will make final decisions for you. Although you may be assessed as not having capacity at a certain point in time, this does not mean that you cannot regain capacity and should you feel that this has changed you can seek to be re-assessed by a professional.

Family Team Solicitor, Stephanie Leszman comments

“The Family Law Team at Pinney Talfourd recognise the importance of an individual in family law proceedings, being able to and being supported in making decisions in court proceedings that will have a significant impact on their life both now and in the future. Awareness months are an important reminder of the importance of this as well as providing as much support as possible to those in society who are vulnerable.”

The above is meant to be only advice and is correct as of the time of posting. This article was written by Stephanie Leszman, Solicitor in the Family team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of January 2023.



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