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                   Notes on Capacity to Instruct Counsel
                                       By Ed Montigny 1


OVERVIEW

In Ontario, the presumption is that an adult client is capable of instructing counsel. This
presumption is not rebutted by the mere fact that a client may be a person with a
disability. Even when a disability impacts upon a client‟s ability to communicate their
instructions to counsel, this does not make the client incapable of instructing counsel.
Counsel has an obligation to find the appropriate means to accommodate the client‟s
disability related needs to the point that effective communication is possible. In the
majority of situations where a disability may appear to compromise a client‟s ability to
provide instruction to counsel, the provision of adequate accommodation will allow the
client and lawyer to work together effectively.

Nevertheless, even when accommodation has been provided, there will be occasions
when a lawyer has serious concerns about a client‟s ability to understand the nature of
the retainer, the circumstances of the case and the options presented when he or she
instructs counsel. When these situations arise, a lawyer must be able to assess the
client‟s capacity and decide whether it is possible to continue to accept instruction from
the client, or whether, due to the client‟s inability to sufficiently understand the
information related to their legal matter, the lawyer is unable to continue to accept the
client‟s instructions.

Finding a client incapable of providing instruction to counsel is a serious matter that
impacts upon a client‟s ability to access justice. However, taking instruction from a
client when their capacity is in question represents a serious breach of a lawyer‟s ethical
obligations. For these reasons, lawyers have a duty to understand capacity from both a
practical as well as a legal vantage point. The notes that follow are not intended to be a
full discussion on the issue of capacity. They merely represent a practical starting point
to help lawyers begin their exploration of this often complex and challenging subject.

WHAT IS CAPACITY?

Although much has been written on the topic of defining and recognizing capacity, the
concept remains elusive.

Having a particular diagnosis which may affect capacity, such as a mental health issue
or dementia, is not, in itself, determinative of an individual‟s capacity to instruct counsel.
While certain conditions may potentially impact upon a person‟s capacity to make
certain decisions, it cannot be assumed that the mere presence of such a disability,
automatically renders a person incapable to instruct counsel. Each case must be
assessed on an individual basis.
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The definition most often employed by the courts when they must decide whether
a person is capable or incapable of making a particular decision includes two
basic elements:

       To be “mentally capable” means that a person must have the ability to
       understand information relevant to making a decision and the ability to
       appreciate the reasonably foreseeable consequences of a decision or lack
       of decision.2 (emphasis added).

An important element of the definition above is that the focus is on process rather
than outcome. The determination of capacity does not turn on the nature of a
person‟s actual decisions. A person is not incapable simply because their
decisions may appear questionable. The inquiry focuses on a person‟s ability to
understand relevant information and appreciate consequences. As long as a
person can meet this test they are capable of making decisions. The fact that a
lawyer may not agree with those decisions is not relevant to a determination of
capacity.

Determining capacity does not involve testing a person‟s prior knowledge. The
goal is to confirm a person‟s ability to understand and process information. For
instance, a lawyer must be satisfied that a client has a basic understanding of the
mutual roles of client and solicitor. However, most members of the public do not
have a detailed appreciation of what lawyers do, what a retainer means or what
the obligation to instruct counsel entails. So the fact that a client may not already
understand these issues does not render them incapable. It is a lawyer‟s duty to
explain these issues to the client. Capacity can be tested only once all necessary
information has been provided to the client in a clear and easy to understand
manner. Only if a client appears unable to understand the information provided to
them will a concern about their capacity to instruct counsel arise.

The issue of capacity is further complicated by the fact that an individual‟s
capacity can fluctuate over time. Many mental health issues are episodic,
meaning that while there may be periods where a person is incapable of
performing a particular function, between such episodes that person will be
perfectly able to make all decisions. The capacity of people with certain injuries,
such as an acquired brain injury, may improve over time. For these reasons, it
may be necessary in some cases to evaluate a client‟s capacity on an on-going
basis especially if any change in their ability to absorb or process information is
detected.

It is not necessary that a client understand all the details necessary to pursue
their case. Just as any person can hire an expert to handle complex affairs that
are beyond their personal expertise, a client can rely on their lawyer or
representative to understand the specific details and processes involved in their
case. 3 A client need only:
                                                                                3        3
   a) understand what they have asked the lawyer to do for them and why,
   b) be able to understand and process the information, advice and options the
      lawyer presents to them, and
   c) appreciate the pros, cons and potential consequences of the various
      options.

Capacity is task specific. The test must be applied to the specific issue at hand.
For instance, a person may be incapable to manage finances, due to an inability
to process numerical information. This does not mean that they are also
incapable of instructing counsel. It is necessary in every case to examine the
precise conduct in question, to determine the essential elements of that conduct,
and to inquire as to the client‟s ability to understand the nature and quality of
those elements so that an informed decision can be made. As long as that
understanding is present, then any other form of mental health issue, however
great, is irrelevant. It follows, therefore, that the criteria to determine whether a
mental health issue is relevant are not universal. Rather they will vary from case
to case simply because the essential elements of conduct inevitably vary from
case to case. 4

Consistent with the task specific notion of evaluating capacity, different legal
tests have been developed in different contexts. It is up to counsel to ensure that
the requisite standard is met. Some of the areas where specific legal tests have
been developed include:

      Capacity to be a party litigant is canvassed in the Rules of Practice and
       related jurisprudence and is frequently canvassed in the context of
       limitation periods.5 In other fora there may also be rules that deal with
       capacity of complainants or applicants. Or, there may be no specific rules,
       requiring counsel to investigate further how best to proceed.

      Testamentary capacity requirements are thoroughly reviewed in the
       context of estates jurisprudence. 6

      Capacity to consent to health care is another detailed area of the law as is
       the law with respect to powers of attorney. 7

CAPACITY AND PROFESSIONAL OBLIGATIONS

Rule 2.02(6) of the Rules of Professional Conduct of the Law Society of Upper Canada
specifically addresses capacity. It begins with the principle of autonomy, directing a lawyer
to maintain a normal relationship as far as is reasonably possible. The Commentary
canvasses the gradations of disability that may exist, and the steps that, in some cases,
may be necessary to ensure that there is proper assistance for the client with respect to
his or her legal affairs.
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      Client Under a Disability

      2.02 (6) When a client's ability to make decisions is impaired
      because of minority, mental disability, or for some other reason, the
      lawyer shall, as far as reasonably possible, maintain a normal
      lawyer and client relationship.

      Commentary
      A lawyer and client relationship presupposes that the client has the
      requisite mental ability to make decisions about his or her legal
      affairs and to give the lawyer instructions. A client's ability to make
      decisions, however, depends on such factors as his or her age,
      intelligence, experience, and mental and physical health, and on
      the advice, guidance, and support of others. Further, a client's
      ability to make decisions may change, for better or worse, over
      time. When a client is or comes to be under a disability that impairs
      his or her ability to make decisions, the impairment may be minor or
      it might prevent the client from having the legal capacity to give
      instructions or to enter into binding legal relationships. Recognizing
      these factors, the purpose of this rule is to direct a lawyer with a
      client under a disability to maintain, as far as reasonably possible, a
      normal lawyer and client relationship.

      A lawyer with a client under a disability should appreciate that if the
      disability of the client is such that the client no longer has the legal
      capacity to manage his or her legal affairs, then the lawyer may
      need to take steps to have a lawfully authorized representative
      appointed, for example, a litigation guardian, or to obtain the
      assistance of the Office of the Public Guardian and Trustee or the
      Office of the Children's Lawyer to protect the interests of the client.
      In any event, the lawyer has an ethical obligation to ensure that the
      client's interests are not abandoned.

Where a client does not have capacity, the lawyer‟s key ethical obligation is to
ensure that a client‟s interests are not abandoned. Termination of a retainer
without making serious attempts to ensure the client‟s legal affairs are attended to
when possible and practical would amount to abandonment.

If a lawyer concludes that a client is incapable of instructing counsel, it may be
necessary to seek the appointment of a litigation guardian to instruct counsel on
behalf of the incapable person. While seeking this type of accommodation has
been complicated in the past, 8 increasingly, administrative boards and tribunals
as well as the courts are acknowledging the need to have in place simple,
accessible and cost effective processes to permit the appointment of litigation
guardians or the use of other forms of accommodation to ensure that litigants with
capacity issues are not prevented from asserting their legal rights due to a lack of
proper accommodation by the legal system. 9
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ACCOMMODATION

Before any determination of capacity is made, accommodation must be provided.
The Ontario Human Rights Code obligates all service providers to accommodate
disability. This means that lawyers have a legal obligation to provide whatever
accommodations are required by a client with a disability. This includes clients
with mental health issues, acquired brain injuries, intellectual disabilities or any
other disability that may impact upon a person‟s ability to understand or process
information or appreciate the consequences of making or not making a decision.
A lawyer has a professional obligation to not turn away a client simply because
they require accommodations the lawyer may find expensive or inconvenient. In
addition, service providers must accommodate people with disabilities without
passing on the cost to those persons. This means that a lawyer cannot charge a
client for the cost of interpreters or other forms of accommodation.10

The idea behind accommodation is that a person who is unable to perform a
particular function due to a disability, will, in most cases, be able to perform that
function adequately if they are provided with the proper assistance or
accommodation. The obvious example would be providing wheelchair ramps to
allow persons who, due to a disability, could not otherwise get from point A to
point B if doing so involved climbing stairs.

This principle applies to capacity in the same way it applies to physical
disabilities. Clients who have difficulty understanding or processing information
should be provided with whatever accommodation they need to improve their
ability to understand and appreciate the information relevant to their legal matter.
Accommodation may be simple, such as speaking clearly, providing written
material in plain language, frequent repetition, or giving a client extra time to
absorb information and make decisions. In some cases more complex forms of
accommodation may be required.

Supported decision making is a form of accommodation specific to persons with
capacity issues. The idea is that an individual or small group of individuals who
know a person well assist that person by helping them absorb and process
information in a manner that is familiar to them, by communicating the
information to them using the terms or gestures that the person in question
understands. Supported Decision Making may work well in cases where a client
has a communication disability and therefore has difficulty expressing
themselves in a manner that anyone other than those close to them can
understand. In such a case, support persons would act as interpreters, explaining
the information provided by the lawyer to the person in a manner the person can
understand, and conveying the person‟s decision, which may be expressed as
words or gestures, to the lawyer in a manner the lawyer can understand. 11

Supported decision making is still a relatively new and untested concept. 12 It has
the potential to allow many individuals who might otherwise be declared
incapable to retain their autonomy. However, it is not without its challenges for
lawyers. The duty to accommodate does nothing to diminish a lawyer‟s obligation
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to ensure that he or she is receiving instruction from the client. When a lawyer is
receiving instructions via an intermediary such as a support person, there may be
situations where it is not clear to the lawyer that the client is actually the person
making the decision in question. This is a particular concern in situations where
the lawyer cannot understand the words or gestures the client uses to
communicate, it may be nearly impossible to confirm that instructions provided
through the „support person‟ are not simply the opinions and decisions of that
support person. Nevertheless, it is necessary to canvas supported decision
making and employ it to the extent possible before turning to more drastic
measures such as the appointment of a litigation guardian.

If after all options and accommodations have been attempted, it is still clear that
a client does not have capacity to instruct counsel, a lawyer must refuse to act
until other arrangements have been put in place. As noted above, the lawyer is
obligated to take action on behalf of the client to ensure such arrangements are
put in place.

PRACTICE SUGGESTIONS

The following are suggestions that may assist in making a capacity
determination, keeping in mind that the lawyer‟s responsibility is to respect the
client‟s autonomy wherever possible.

      Repetition

There are often times in a law practice when lawyers are called upon to repeat
their legal assessment of a situation to a client a few times. For example, the
client might be distraught or unfamiliar with the justice system. Similarly, it may
be necessary to take the extra time and explain the situation on more than one
occasion to a person with an intellectual disability who learns differently. When a
lawyer does this, they are more likely to develop alternative and more effective
ways of communicating with the client over time, and the client may be more
relaxed on subsequent visits and will understand more.

      Clear and relevant communication

Just as people learn differently, some express their views differently. Answers
may not be forthcoming to complex questions, nor in the order that the lawyer
anticipates. But, if asked to express why they have come to a lawyer, what they
are hoping for, what the problem is, the story may unfold with sufficient internal
integrity that a lawyer can conclude the client appreciates the relevant information
and the foreseeable consequences of different options.

      A task specific inquiry

This is a very important principle that is often forgotten. Someone may have the
capacity to make certain decisions and not others.
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      Not evaluating prior knowledge

A lawyer is not testing a client‟s prior knowledge but is instead inquiring whether
the client has sufficient understanding to appreciate relevant information and the
effect of the decision they are making.

      Evaluate your own assumptions about disability

Many of us have lingering stereotypical assumptions about disability. For
example, persons with communication disabilities are frequently assumed to lack
ordinary mental capacity. A particularly common assumption is that someone with
a mental health issue lacks the capacity to make all sorts of decisions. These and
similar assumptions are neither acceptable on a human relations level nor legally
valid.

      Client comfort levels and appropriate accommodation

All of us think better when we are comfortable in our surroundings and feel a
rapport with the person we are talking to. If a lawyer has concerns respecting
capacity, it may help to make sure that your client with a disability feels
comfortable in your office. It may help to speak to the client about the disability
with them? It may be useful to ask if the client requires further or different
accommodation. Lawyers may find the ARCH article “Providing Legal Services to
People with Disabilities” useful in this regard.13

      Episodic loss of capacity

Any client might lose capacity tomorrow as a result of a significant health incident
or an injury. A lawyer then will face the dilemma of no longer being able to take
instructions from that client on an active file. A lawyer can hope that the individual
has arranged for such eventualities by way of a power of attorney. Where a client
has indicated that they have an episodic disability that leads to intermittent
periods of incapacity, it would be wise to plan for such situations. A lawyer will
need to consider what steps should be taken to ensure that there is someone to
instruct counsel, not withstanding the periodic incapacity.

      Recording deliberations

It is always wise to make detailed records of difficult legal assessments. Making a
determination that an individual has or has not sufficient capacity to make certain
decisions or instruct counsel is one of those situations. It is important for a lawyer
to maintain detailed notes in the file recording the conversation(s) or other facts
that formed the basis of the assessment that the client lacks capacity. It is usually
a good idea to ask support staff or another lawyer to attend meetings with a client
who may lack capacity to record what is said as well as provide a second opinion
concerning that client‟s ability to instruct counsel.
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        Second Opinions

At times it may be wise for a lawyer to make their assessment of a client‟s
capacity together with a colleague invited to the interview with your client‟s
consent. Alternatively, depending on the circumstances, you might consider
retaining a professional to conduct a capacity assessment.


                                           ENDNOTES
1
     Ed Montigny is a staff lawyer at ARCH Disability Law Centre. These „Notes‟ rely heavily on the version
     prepared by Phyllis Gordon, former Executive Director of ARCH Disability Law Centre (2000-2007).
     These materials were initially prepared for the 27 November 2003 Continuing Legal Education
     Program titled “A Disability Law Primer,” sponsored by ARCH, Pro Bono Law Ontario, the Law
     Foundation of Ontario and the Law Society of Upper Canada. They were updated in 2011.
2                                                                        nd
     Long-term Care Facilities in Ontario: The Advocate‟s Manual (2 edition). Advocacy Centre for the
     Elderly, 2001
3
     For a discussion of a related issue see Kacan v. Ontario Public Service Employees Union, 2010 HRTO
     795.
4
     Godelie v. Pauli, [1990] O.J. No. 1207 (Dist.Ct.), Misener, D.C.J.; see M.K. v. Nova Scotia (Minister of
     Community Services),[1996] N.S.J. No. 275 at para. 66.
5
     The Limitations Act, 2002, S.O. 2002, c. 24, sched. B, has several implications for persons with
     disabilities and should be read in its entirety. See Jordan Atin & Ian Hull, Personal Injury and Mental
     Capacity Law: Strategies for Claims Involving Incapable Parties, Ontario Bar Association, Continuing
     Legal Education, 2007; and Clare E. Burns, “Suing or Defending Particular Parties” in The Limitations Act,
     2002: Understand the New Rules Before Time Runs Out, Law Society of Upper Canada, June 11, 2003.
6
     For a discussion of capacity in the context of estates planning see Lana Kerzner, Laurie Letheren &
     Susan Stamm, “Estate Planning and Persons with Disabilities: Use of Trusts in Ontario and Other
     Canadian Jurisdiction,” in Cross-Country Expedition: Probate and Incapacity Planning and Administration
     Across Provincial Boundaries (Ontario Bar Association, Continuing Legal Education, 2006) Tab 5; also
     see http://estatelaw.hullandhull.com/articles/topics/capacity-1/ and
     http://estatelaw.hullandhull.com/articles/topics/estate-planning-1/ for further useful information.
7
     See Jasmine Sweatmen, Guide to Powers of Attorney (Canada Law Book, 2002).
8
     Tess Sheldon, Access to Administrative Justice for Persons with Disabilities: Addressing the Capacity of
     Parties Before Ontario‟s Administrative Tribunals, Promoting Autonomy and Preserving Fairness,
     (December 2009) (see website - www.archdisabilitylaw.ca)
9
     See Yuill v. Canadian Union of Public Employees 2011 HRTO 126.
10
     It is still not clear what impact this might have upon sole practitioners who serve persons with
     disabilities. Nor is it clear what assistance the Law Society of Upper Canada or the Ontario
     Bar Association can offer to lawyers who find the cost of accommodating clients with
     disabilities overwhelming.
11
     Lawyers should have all support persons and/or interpreters sign confidentiality agreements; also see
     Engel v. Winkleigh Co-operative Housing, 2010 HRTO 1466 for some indication of how tribunals may
     respond to supportive decision making type accommodations.
12
     See Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to Legal
     Capacity,” (2010), Law Commission of Ontario (http://www.lco-cdo.org/en/disabilities-call-for-papers)
13
     See ARCH website www.archdisabilitylaw.ca

				
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