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This article considers the Court of Protection’s powers to direct the conduct of legal proceedings on behalf of an incapacitated adult, under s18 (1)(k) of the Mental Capacity Act 2005. It discusses the assessment of litigation capacity and the concept of best interests in litigation, particularly in cases where other parties to hostile litigation may also be entitled to apply for a statutory gift or will to be made in their favour. It proposes the adoption of a practice direction for the Court to follow when considering best interests in litigation, analogous to that which applies to trustees seeking directions in litigation on behalf of a trust, which would enable the Court to closely weigh up the risks and benefits of proposed litigation.
The full version of this article appears in issue 2 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article.