a lawyer must be able to assess the client’s capacity and decide whether it is
possible to continue to accept instruction from the client, or whether, due to the
client’s inability to sufficiently understand the information related to their legal
matter, the lawyer is unable to continue to accept the client’s instructions.
Finding a client incapable of providing instruction to counsel is a serious matter
that impacts upon a client’s ability to access justice. However, taking instruction
from a client when their capacity is in question represents a serious breach of a
lawyer’s ethical obligations. For these reasons, lawyers have a duty to
understand capacity from both a practical as well as a legal vantage point. This
article represents a practical starting point to help lawyers begin their exploration
of this often complex and challenging subject.
II. CAPACITY TO INSTRUCT COUNSEL
Having a particular diagnosis which may affect capacity, such as a mental health
issue or dementia, is not, in itself, determinative of an individual’s capacity to
instruct counsel. While certain conditions may potentially impact upon a person’s
capacity to make certain decisions, it cannot be assumed that the mere presence
of such a disability automatically renders a person incapable to instruct counsel.
Each case must be assessed on an individual basis.
The definition most often employed by the courts when they must decide
whether a person is capable or incapable of making a particular decision
includes two basic elements:
To be “mentally capable” means that a person must have the ability
to understand information relevant to making a decision and the
ability to appreciate the reasonably foreseeable consequences of a
decision or lack of decision.^3 (emphasis added).(^3) ;Advocacy Centre for the Elderly, Long-term Care Facilities in Ontario: The Advocate’s Manual
(2nd edition) 2001; Health Care Consent Act, supra note 2 at s 4(1) and Substitute Decisions Act,
supra note 2 at s 6.