which may be expressed as words or gestures, to the lawyer in a manner
the lawyer can understand.^13
Supported decision making is still a relatively new and untested concept.^14
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 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.
(^13) 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 supported decision making type accommodations. 14
See Michael Bach and Lana Kerzner, “A New Paradigm for Protecting Autonomy and the Right to
Legal Capacity,” (2010), Law Commission of Ontario, online: http://www.lco-cdo.org/en/disabilities-
call-for-papers-bach-kerzner