Mental Capacity in Personal Injury Claims What You Need to Know

Posted Oct 07, 2020.

What should you know about Mental Capacity and Making a Personal Injury Claim?

When making a claim for compensation following an injury or illness, not everyone will have the required ability to make sound, correct decisions to make sure the claim progresses properly, or perhaps fully understand the future impact of decisions that may have to be made.  

Such a lack of mental capacity can often be the result of more serious injuries, typically to the head or brain, resulting in the injured person being unable to make their own decisions about things such as compensation, finances, investment and health and welfare. In these situations, in England and Wales, the Court of Protection (‘CoP’) can step in to make such decisions on behalf of what are referred to as ‘protected people’.

What is the Mental Capacity Act 2005?

The Mental Capacity Act 2005 is the main legislation that is used in the CoP.  The act states that a person lacks mental capacity if they are unable to make a decision for themselves “because of impairment of, or disturbance in the functioning of, the mind or brain”. In simple terms, this means that if the individual doesn’t  understand the information, are unable to make a decision or they are unable to communicate their decision, then in the eyes of the law that person lacks capacity. The reasons for lack of capacity are wide and varied; in addition to an individual having suffered a brain or head injury (or other bodily injury), lack of capacity can be the result of dementia, cerebral palsy and other serious illnesses.

What is the Court of Protection?

The CoP helps protected people make decisions that will often have a huge impact on their future lives, and their remit includes:

·         Deciding whether someone can be deprived of their liberty under the Mental Capacity Act 2005

·         Deciding whether the protected person has the mental capacity to make and communicate their own decisions

·         Granting permission for specific people to make one-off decisions on behalf of a protected person

·         Decision making on applications to make statutory wills or gifts

·         Appointing deputies

Appointment of Deputies

Deputies are formally appointed by the Court of Protection and are granted legal authority by the Court to make decisions on behalf of the protected person. Deputies are usually – but not always – a close relative or family member, such as a parent or spouse/partner, and when appointed as part of an injury compensation claim, they will become the main point of contact for the solicitor or law firm who are representing the claimant and handling the claim. It certain cases, usually where the protected person has no close relatives, a solicitor or team of solicitors can also apply to be appointed as deputies.

Once the Court has appointed a deputy, they will clarify via a Deputyship Order what decisions or areas they are and aren’t allowed to act on when representing the protected person. The deputy can then manage the protected persons health and welfare, financial affairs and property in accordance with the limits specified in the Deputyship Order and in compliance with the Mental Capacity Act. Health and welfare matters typically include:

·         Daily care arrangements, leisure activities and dietary needs

·         Consenting to medical treatment

·         Where the protected person lives and who they live with

Financial and property matters may include:

·         Buying, selling or adapting a property

·         Making general financial decisions including the claiming of benefits and paying bills

·         Ensuring that the needs of dependants (of the protected person) are met

In all cases, the deputy also has a duty to decide whether the protected person has the mental capacity to make decisions each time they arise and may only make such decisions if the protected person still lacks the mental capacity. Should a deputy feel that a decision needs to be made that falls outside the scope of the Deputyship Order, then a further application will need to be made to the Court of Protection.

Serious Injury Claims Advice from Bakers Solicitors


At Bakers we pride ourselves on our experience in representing claimants who have been seriously injured  through no fault of their own, helping them to receive compensation that they are properly entitled to. Our professional, friendly team will give you an honest, free and ‘plain English’ appraisal of your claim and we love delighting our clients when they receive injury compensation they deserve. 


If you would like us to handle your personal injury compensation claim, you can contact us online or by phone on 01252 744600.