ABSTRACT
Capacity to litigate is an individual’s capacity to conduct legal proceedings, which includes bringing a case to Court, defending or responding to a case or appearing in Court as a party to legal proceedings. The Court will consider all of the relevant evidence presented by all parties in the case, including the family’s views and any expert opinion from professionals. The Court will have to decide what the background facts are, apply the law to those facts and then make a final decision as to whether or not the individual has litigation capacity. Professionals should always ensure that the Court has granted permission for information to be shared, to assist the assessment, and permission for the assessment to be disclosed to avoid any confidentiality issues arising. The rules on admissibility of evidence are more flexible within civil courts than they are in criminal courts.
