environment; and removing barriers that hinder full and effective participation in
society.^27
These objectives underscore the importance of a lawyer’s assessment of
capacity.
In order for a person with a disability to be fully recognized as an autonomous,
independent and fully participating member of our society, a lawyer must be open
to the fact that people may express themselves differently; that people may think
differently; that people may act differently; or that people may make decisions
that a lawyer does not agree with. It is imperative that a lawyer find ways to look
beyond stereotypes and to assess a client’s capacity with an open mind, with
sensitivity to the fact that difference does not mean that a person with a disability
is incapable. A client is always presumed to be capable unless otherwise
proved.
Any step that removes a client’s ability to make decisions for themselves should
be taken only in the most obvious and extreme circumstances, where there
simply is no other way to proceed. Before considering such a drastic course,
lawyers must take all steps possible to work with a client and provide all
appropriate accommodations in order to enhance the client’s decision-making
capacity.
(^27) H. Archibald Kaiser, Advocacy for Persons With a Mental Illness: Overcoming the Problems:
Proceedings of the Osgoode National Symposium on Mental Health Law, Toronto, November 25,
2009 at Tab 6