At Pryers Solicitors, as medical negligence and personal injury specialists, we unfortunately see many clients who have suffered some form of brain injury. These injuries either prevent development of or deteriorate someone’s ability to manage their own affairs, forcing them to rely heavily on family members to help them not only with their claim, but also with future care and decisions. In these situations, a legal deputy may be appointed by the Court of Protection to support families with looking after the finances of someone who lacks the mental capacity to do so themselves.
Why might you need a Deputy?
Understanding how to put the right care, treatment and facilities in place can put a tremendous strain on family and friends. This is exacerbated when coupled with making the right investment choices for the future, particularly if the injured person receives a large compensation payment. It is an enormous responsibility to correctly invest the settlement funds to ensure a lifetime of security.
As part of a medical negligence claim, it is important to obtain enough compensation for both past losses but also future losses for rehabilitation, care and accommodation. A number of experts may be instructed from a range of specialisms including, but not limited to:
- Occupational Therapy
- Speech and Language Therapy
- Assistive Technology
- Educational Psychology
Once a medical negligence claim is settled, families may need to rely on a Court of Protection order. This is where the Court appoints a suitable deputy to manage the property and affairs of the injured individual. In doing so, this may involve making decisions like; buying a new house which caters for their needs, putting in place external provision of care and support or buying equipment or resources which aids fulfilment, communication and independence.
The court, on some occasions, will be happy to appoint a lay deputy, depending upon the circumstances and the amount of the settlement.
In most cases where there is a significant compensation payment, the court will require the appointment of a professional deputy to manage the compensation monies and support the injured person in applying these for their best interests.
Role of a deputy during litigation
Medical negligence claims can take a number of years to investigate by gathering the appropriate expert evidence to ascertain whether the treatment was negligent. In more serious or complex claims, like brain injury claims, we might need to speak with multiple experts in various fields. These experts will also outline the injured party’s prognosis, helping us understand the extent to which there may be any recovery. This helps to inform us of the need for future treatment and resource.
Once we have the necessary evidence, we will write to whoever is responsible for the negligence (the potential defendant to the litigation). Our letter will set out what we think they did wrong and the consequence of this. We must then give the defendant time to respond. Depending on how they respond will determine the next steps.
In claims involving more serious injuries, when there is an admission of liability we will try and get an interim payment.
A deputy can be involved during the life of the claim or litigation. The benefit of appointing a deputy early means that they can assist during the ongoing litigation by helping to manage interim payments from the defendant to put recommended support, therapies and accommodation in place.
If the defendant accepts liability, we will gather evidence of the losses that their negligence caused. The defendant will likely require their own evidence. Once there is enough evidence, we will begin settlement negotiations. Sometimes a settlement can be agreed, but it is common – especially in more complex claims – for this to take some work. During this process, the deputy can assist in commencing the provision of rehabilitation and support.
Role of a Deputy after settlement
The deputy may need to make any decisions in respect of the individual’s welfare, health and financial position, though that may not be necessary for all cases. The Court will outline what decisions the deputy may need to make based upon the individual’s needs. These may change depending on circumstances.
Once a claim is settled, the deputy’s role is to obtain financial advice, make sure appropriate benefits are being claimed and consider further steps that may need to be taken, including purchasing a property, taking independent financial advice on investments, considering whether a statutory Will is required or needed. A deputy should budget to ensure that any settlement will allow the injured party to have funds available for the rest of their life. The Court of Protection requires an annual report to be submitted, which keeps an eye on how any money is being spent, to ensure that this is in the best interest of the injured party.
Making the right decisions in the best interests of the injured party will always be the deputy’s primary duty. For example, if a child suffered a brain injury at birth; the deputy may need to make all financial decisions alongside care and treatment at the beginning. However, as the child matures and adapts to living with their brain injury, subject to their capabilities they will be involved in the decision making as much as possible and encouraged to learn how to manage a small budget, if appropriate. This will aid their development and independence by managing minor day to day spending.
Mental Capacity Act 2005
The Act is underpinned by five key principles:
- A presumption of capacity
- Individuals being supported to make their own decisions
- Unwise decisions not being overridden
- Best interests
- Less restrictive options being considered
The key consideration is to think: ‘what would the injured party want if they had the capacity to make a decision and can they be involved in the decision in some way?’
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