Part 5: Parties to Proceedings

64. Litigation representative in mental capacity proceedings 65. Mental capacity proceedings: where P ceases to lack capacity or dies 66. Application to be added as a party 67. Appointment of litigation representative for persons under disability 68. Informing of a party’s death in cases where proceedings are to be abated

Where P is a party to any mental capacity proceedings with a litigation representative, P should be referred to in the proceedings as “P (by \[his or her] litigation representative, \[litigation representative’s name])”.

The affidavit in support of an application to be the litigation representative of P or to appoint a new litigation representative in place of an existing one must satisfy the Court of the matters set out in Part 6, Rule 4(5)(a) of the Family Justice (General) Rules 2024.

Under Part 6, Rule 4(2) of the Family Justice (General) Rules 2024, the Court may allow P to conduct any mental capacity proceedings without a litigation representative. An application to allow P to conduct mental capacity proceedings without a litigation representative must be supported by a medical report stating that P does not lack capacity to conduct proceedings himself or herself.

Where P ceases to lack capacity or dies, steps may need to be taken to finalise the Court’s involvement in P’s affairs.

Application to end proceedings

Where P ceases to lack capacity in relation to the matter or matters to which the proceedings relate, an application may be made by any of the following people to the Court to end the proceedings and discharge any orders made in respect of that person:

P; (b) his or her litigation representative; or (c) any other person who is a party to the proceedings.

The application should be supported by evidence that P no longer lacks capacity to make decisions in relation to the matter or matters to which the proceedings relate.

Applications where proceedings have concluded

Where P ceases to lack capacity after proceedings have concluded, an application may be made to the Court to discharge any orders made (including an order appointing a deputy or an order in relation to security).

The affidavit filed in support should exhibit the orders sought to be discharged and contain evidence that P no longer lacks capacity to make decisions in relation to the matter or matters to which the proceedings relate.

Procedure to be followed when P dies

An application for final directions (including discharging an order appointing a deputy or discharging the security) may be made following P’s death. The application should be supported by an affidavit exhibiting a copy of P’s death certificate.

Final report by deputy

The Public Guardian may require a deputy to submit a final report upon P ceasing to lack capacity or P’s death. If security has been ordered by the Court, the Court must be satisfied that the Public Guardian either does not require a final report or is satisfied with the final report provided by the deputy before the said security can be discharged.

The affidavit in support of an application under Part 6, Rule 6 of the Family Justice (General) Rules 2024 by any person to add himself or herself as a party, must show:

his or her interest in the matters in dispute in the cause or matter; or (b) as the case may be, the question or issue to be determined as between him or her and any party to the cause or matter.

The affidavit in support of a summons under Part 6, Rule 11(3) of the Family Justice (General) Rules 2024 must include evidence proving:

that the person to whom the summons relates is a person under disability; (b) that the person proposed as litigation representative is willing and a proper person to act and has no adverse interest to that of the person under disability; (c) that the originating application, reply or reply affidavit (as the case may be) was duly served on the person under disability; and (d) subject to Part 6, Rule 11(4) of the Family Justice (General) Rules 2024, that notice of the hearing date of the summons has been served on the person under disability in accordance with the Court’s directions.

A person may inform the Court of a party’s death pursuant to Part 6, Rule 17(10) of the Family Justice (General) Rules 2024 by submitting the following documents / information in a letter within a reasonable time after the person becomes aware of the death:

a copy of the death certificate; (b) a translated copy of the death certificate (if the death certificate is not in the English language); and (c) the case numbers of all pending proceedings in which the deceased is a party.