Who is the Official Solicitor and when should they be added as a party to proceedings?

When acting on behalf of the protected party (P) as their deputy, there may be times when the court decides that it would be in P’s best interests to add the Official Solicitor as a party to proceedings. This is not uncommon in litigious cases where P lacks mental capacity, especially where parties face a conflict of interests.

Who is the Official Solicitor?

The Official Solicitor acts as a last resort “Litigation Friend” for adults who lack the mental capacity to make decisions for themselves, or on behalf of minors.  A Litigation Friend makes the decisions about the court case on the client’s behalf.

For example, if you are acting on behalf of a loved one as their deputy for finance and affairs and/or welfare, but a family member disagrees with a particular decision or contests your deputyship, then the Court of Protection may decide it appropriate to contact the Official Solicitor. Similarly, anyone else that is added as a ‘” party to proceedings” is able to make an application to the court.

The Official Solicitor can be appointed by the court for several reasons, particularly if there are contentious proceedings being put before the judge or there is a question about P’s deprivation of liberty.

 What decisions can the Official Solicitor make on P’s behalf?

The Official Solicitor will only decide issues specific before the court. The Official Solicitor will not be involved in any other decisions in that person’s life. For example, decisions on where P should live very often involve the Official Solicitor as a party to court proceedings, even where the client has a deputy appointed, if the court finds it appropriate.

The criteria for the Official Solicitor to be added as a party to proceedings

The Official Solicitor will not act on P’s behalf unless the following three criteria have been satisfied:

1. If there is evidence that P lacks the necessary capacity to conduct the legal proceedings on their own
2. That P owns liquid funds that it considers adequate in the circumstances
3. That this is the last resort for the client.

If the above conditions are met, the Official Solicitor will also act in proceedings for example to make decisions surrounding the gratuitous care payments and transactions or investments where one of the parties faces a conflict of interest, execution of wills and gifts.

It is important to note that even if you are acting on P’s behalf as deputy, it is still possible for the court to add the Official Solicitor to the proceedings, if the deputy is considered unsuitable to act as Litigation Friend. In property and affairs proceedings this will usually be by way of a Court Order.

What happens is the contested matter comes to an end?

If the issue in dispute has been resolved, it is the responsibility of the deputy to pay for any outstanding legal fees and outstanding costs for the Official Solicitor.

If you require any help or guidance with navigating a deputyship or would like to apply for one on a loved one’s behalf our Court of Protection team are highly experienced in assisting with Property and Affairs deputyships and Lasting Power of Attorneys.

For information obtained from the Gov. UK website and practice direction click here.