Q: My mother is in a Care Home as she has dementia. However, she has instructed solicitors to try and get her out to live in her own home. I have now received an Order from the Court of Protection inviting me to act as Litigation Friend because my mother lacks capacity to make decisions herself. She is under “DOLS” and is not allowed leave the care home for her own safety. I agree with this and don’t think she should be allowed to return home. What is a Litigation Friend and can I still act as Litigation Friend if I don’t agree with what she’s asking for?
A: As your mother lacks capacity, the Court has felt it necessary to appoint someone to essentially “run” the case on her behalf and provide instructions to the solicitors who act for her. This person is known as a Litigation Friend.
Whoever acts as Litigation Friend needs to be able to conduct the Court proceedings competently, fairly and have no adverse interests to your mother. As you believe your mother should remain in the Care Home, you would have difficulty in assisting her in a Court challenge. Also, it might cause unnecessary conflict between you. It would therefore seem inappropriate for you to act as Litigation Friend.
I would suggest that you decline the Court’s invitation. The Court can consider other people who can act, such as the Official Solicitor. The Court could also appoint an Accredited Legal Representative to act for your mother. These are technical terms, but the effect of either is to make sure that the Court is best able to consider what is best for your mother. If you have any further questions about this or the Court proceedings generally, please do contact our offices where we have experts in this area of law.
(Article 19/11/2018)