As stated at 36.7 above, in cases where a person lacks mental capacity as a result of a negligence claim, and has been awarded substantial damages, the question arises as to the best approach for the Court to take in terms of protecting and managing the individual’s assets. If that person has not made provision (i.e. by making a power of attorney that endures beyond incapacity), the choice will be either to appoint a deputy who is governed by the Court of Protection or to permit the disabled person’s property to be placed into a suitable trust. There are good reasons for choosing either route and these were fully examined by HHJ Marshall QC in Re SM v HM (2012).

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