An evaluation of capacity should not take place in the absence all necessary
accommodations and supports to enhance a client’s capacity. It is not necessary
that the client understand the evidentiary or procedural aspects of accomplishing
their goal.
If a lawyer has doubts about a person’s capacity to instruct, it may help to meet
with them on two or three separate occasions to confirm the consistency of their
wishes and their understanding of their circumstances. Although a person may
be able to describe what they want in coherent terms during any one visit, you
may have to probe further into their capacity to instruct if their wishes change
from visit to visit.^28
If an issue falls under the Substitute Decisions Act, 1996, section 3 of the Act
deems a person capable to retain and instruct counsel for the purposes of
defending their rights under the SDA. It may be possible under the Act to
represent a person who is not actually capable to instruct counsel. Such
circumstances would, however, severely limit a lawyer’s ability to effectively
assist the person and greatly narrow the scope of issues the lawyer could deal
with.^29
It is also important to remember that a person may have been declared incapable
and placed under a guardianship some time ago. Despite their official legal
status of “incapable”, they may, in fact, no longer be incapable of managing
property or personal care.
The fact that a person is still legally under a guardianship cannot be ignored. The
presence of a substitute decision maker can have impact on the options open to
a lawyer to act upon a client’s instructions.
(^28) For more detail on capacity to instruct and accommodations to enhance capacity see the
Capacity to Instruct Counsel 29 chapter in this Disability Law Primer.
See D’Arcy Hiltz and Anita Szigeti, A Guide to Consent an Capacity Law in Ontario, 2013,
Lexis Nexis (2012), at 23-25. Also, for a discussion of the challenges related to the presumption
of capacity, see Banton v. Banton, [1998] OJ No. 3528.