Support for Personal Injury lawyers

Our Court of Protection team have a good understanding of Personal Injury litigation and can provide advice and support in several areas such as:

• Setting up Personal Injury 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 in a coercive relationship will also be vulnerable in respect of their finances.

How can you protect your vulnerable client?

It’s crucial for Personal Injury 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.

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.

Gill Knight and Philippa Barton both spent 20 years specialising in personal injury and clinical negligence litigation before moving to Court of Protection work. We understand the issues facing vulnerable clients who are due to receive a damages award and can work with Personal Injury lawyers to ensure that proper safeguards are in place.

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:

• Deputyship with a Lay or Professional Trustee,
• A Personal Injury Trust,
• A Disabled Person’s Trust,
• A Lasting Power of Attorney,
• Investing the funds at the Court Funds Office.

When do you need to get advice?

It’s important to consult 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 afterwards 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 £50,000, the Court has the jurisdiction to approve a PI Trust for the client at the settlement approval hearing.

Contact us today to arrange a consultation.