Part 9
Persons who lack capacity to manage their affairs
March 2001
19.110 The incapacitated person
(Amended December 2010)
The Rules make a special provision for a person subject to insolvency proceedings where it appears to the court that a person affected by the proceedings lacks capacity to manage and administer his/her property and affairs, either by reason of lacking capacity within the meaning of the Mental Capacity Act 2005 or owing to a physical affliction or disability [Note 1]. The person concerned is referred to in the Rules as "the incapacitated person."
19.111 Mental Capacity Act 2005
(Amended December 2010)
The Mental Capacity Act 2005 states that a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for himself/herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain [Note 2]. The Act goes on to state that it does not matter whether the impairment or disturbance is permanent or temporary, and any question as to whether a person lacks capacity within the meaning of the Act must be decided on the balance of probabilities [Note 3] [Note 4].
19.112 Appointment of other person to act
Where a person is incapacitated, the court may appoint such a person as it thinks fit to appear for, represent or act on his/her behalf [Note 5]. The appointment may be made either generally or for the purpose of a particular application or proceeding, or for the exercise of particular rights or powers which the incapacitated person might have exercised except for his/her incapacity [Note 6].
The court may make the appointment either of its own motion or on application by a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the incapacitated person, or any relative or friend of the incapacitated person who appears to the court to be a proper person to make the application, or the official receiver, or the person who, in relation to the proceedings, is the office-holder [Note 7].
The application may be made without notice but the court may require such notice of the application as it thinks necessary to be given to the person alleged to be incapacitated, or any other person, and may adjourn the hearing of the application to enable the notice to be given [Note 8].
19.113 Witness statement in support of application
(Amended December 2010)
An application under rule 7.44(3) for the appointment of someone to act for the incapacitated person must be supported by a witness statement, made by a registered medical practitioner as to the mental and physical condition of the incapacitated person [Note 9].
19.114 Service of notices following appointment
Any notice served on, or sent to, a person appointed under rule 7.44 has the same effect as if it had been served on, or given to, the incapacitated person [Note 10].
Where the official receiver is dealing with a person mentally or physically incapable of dealing with the proceedings, where possible, this should be dealt with on an informal basis. This should avoid any necessity to apply to court for the formal appointment of a representative, without forgetting the underlying seriousness of the overall situation. Once evidence is produced to satisfy the official receiver of a person’s incapacity, an informal approach should be made to their spouse or other relative or a person who is likely to be able to provide the official receiver with the information required.
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