The basic principles that can help guide a lawyer when faced with making a
decision about a client’s capacity include:
- There is a presumption that a client has capacity to instruct a lawyer;
and - The relationship between a lawyer and client does not change
regardless of disability. The basic principles of agency and client
autonomy apply whether or not a client has a disability.^26
Professor Archibald Kaiser identifies a number of possible objectives for an
advocate addressing issues affecting persons with disabilities. These are:
enhancing client autonomy, including freedom to make choices; assisting clients
in developing self-advocacy skills; assisting clients in leading lives which are as
independent as possible; contributing to the empowerment of clients in their
relationships, their communities and in their access to resources; promoting
respect for the rights, freedoms, dignity and worth of the person or group served
by the advocate; ensuring that the client’s legal and human rights are recognized
and protected; and facilitating access to justice; promoting the equality interests
of people with disabilities; assisting clients to receive health care, social services
and private insurance entitlements; assisting clients in gaining access to supports
and treatments which are the least onerous, least restrictive and least intrusive in
the circumstances; protecting clients from financial, physical, sexual and
emotional abuse, violence and exploitation; fighting the stereotypes, prejudices
and stigma that coincide with disability; addressing the negative impact of
poverty and promoting an adequate standard of living; promoting social inclusion
by trying to ensure access to the physical, social, economic and cultural
(^26) Phyllis Gordon, “Notes on Capacity to Instruct Counsel” in Disability Law Primer,(Toronto:
ARCH Disability Law Centre, 2003), online: ARCH Disability Law Centre
http://www.archdisabilitylaw.ca/?q=cle-disability-law-primer-continuing-legal-education-program-
ontario-lawyers
.