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 Rule 7 of the Rules of
Civil Procedure^6 and related jurisprudence and is frequently
canvassed in the context of limitation periods.^7 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. - Capacity to consent to health care is another detailed area of the
law as is the law with respect to powers of attorney.^8
III. CAPACITY AND PROFESSIONAL OBLIGATIONSRule 2.02(6) of the Rules of Professional Conduct^9 of the Law Society of Upper
Canada specifically addresses capacity. It begins with the principle of autonomy,
directing a lawyer to maintain a regular 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.
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.(^6) Courts of Justice Act, R.S.O. 1990, c. C.43, r.7.
(^7) 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 8.
9 See Jasmine Sweatmen, Guide to Powers of Attorney (Canada Law Book, 2002).^
Law Society of Upper Canada, Rules of Professional Conduct, Rule 2.02(6).