a court appointed guardianship it should be possible to confirm this by calling the
PGT. Pursuant to O Reg. 99/96 under the Substitute Decisions Act, the PGT
must keep a registry of guardians of both personal care and property, including
court appointed guardians. This information can be given out over the telephone
or otherwise upon request. If a person is under a guardianship, a telephone call
should be able to confirm this.
Once it is confirmed that a person has been declared incapable of either
personal care or property management and is subject to a guardianship or other
SDM, the next question that arises is - are they capable to instruct counsel?
III. Can A Person Under Guardianship Instruct Counsel?It can be challenging for a lawyer to determine whether they can actually act on
the concerns of a person who has been declared incapable and placed under a
guardianship. A preliminary issue is of course whether the client is capable to
instruct counsel. It cannot be assumed that because a person has been found
incapable of either property management or personal care decisions that they
are also incapable to instruct counsel. Capacity is task specific. It is up to the
lawyer to determine for themselves whether a client is capable to instruct them.
(^26)
When it comes to assessing the capacity of a person under a guardianship to
instruct counsel the process is the same as it would be for assessing the capacity
of any client to instruct counsel. If the person can understand the information
relevant to making a particular decision and the person can understand and
appreciate the consequences associated with making or not making the decision,
they are capable.^27
(^26) See Law Society of Upper Canada, “Capacity to Instruct Counsel” (2011).
(^27) See Substitute Decisions Act, 1992, s 6 and s 45. See also Capacity to Instruct Counsel
chapter in this Disability Law Primer.