Support for Litigation Solicitors with Vulnerable Clients

Support for Litigation Lawyers Acting for Vulnerable Clients

Our specialist Court of Protection deputyship team specialise in safeguarding the finances of clients who lack capacity to manage their finances. We can provide advice and support in a number of areas including:

• Setting up Personal Injury trusts
• Setting up Disabled Person’s trusts
• Applications to appoint a deputy
• Acting as professional deputy and trustee
• Providing expert reports on likely deputyship costs
• Advice for clients with capacity issues.

What type of clients are vulnerable?

A vulnerable client will include anyone with cognitive impairment such as:

• A brain injury
• A learning disability
• Mental health problems
• Dementia

Clients with addiction problems or who are in a coercive relationship will also be vulnerable in respect of their finances.

How can you protect your vulnerable client?

It is crucial for litigation lawyers to have correct processes in place for vulnerable clients. There is a particular risk when sending out the final damages cheque for clients who are vulnerable or may lack capacity to manage their finances.

Clients who are receiving means tested benefits also need special consideration to ensure that they do not lose their benefits or get charged with benefit fraud.

Philippa Barton spent 20 years specialising in PI and clinical negligence litigation before moving to Court of Protection work and working as a professional deputy. She supports many litigation lawyers acting for vulnerable clients to ensure that proper safeguards are in place. She is recognised in Chambers for her expertise in this area.

What are the options available?

Under the Mental Capacity Act 2005, whether a client has capacity or not depends on the type of decision being made. Therefore, a client may have capacity to litigate but may lack capacity to manage their finances.

If your client has borderline capacity, it is important to assess whether they have capacity to manage the damages award before sending out the money to them. There are a number of options available including:

• Applying to appoint a lay or professional deputy,
• Setting up a Personal Injury Trust,
• Setting up a Disabled Persons Trust if the damages are not for injuries,
• Setting up a Lasting Power of Attorney and
• Investing the funds at the Court Funds Office.

When do you need to get advice?

It is important to consult a Court of Protection solicitor and take advice on all the options as early as possible.

• For clients receiving means tested benefits, they have one year from the first interim payment to set up a PI trust.
• If the client is a child who will have capacity when they are 18, the court will need to approve a PI trust at the settlement approval hearing. It is not possible to set up the trust after the settlement approval hearing as the child does not have capacity to set up a trust themselves.
• If the client lacks capacity and the damages award is less than £100,000, the Court has the jurisdiction to approve a PI trust for the client at the settlement approval hearing. We can assist with the application to approve a trust for the client.
• If the award does not include any damages for personal injury, it may be possible to set up a Disabled Person’s Trust which will protect the client’s entitlement to claim means tested benefits.

If you are a litigation lawyer acting for a vulnerable client, contact us for advice.