VI. PRACTICE SUGGESTIONS
The following are suggestions that may assist in making a capacity
determination, keeping in mind that the lawyer’s responsibility is to respect
the client’s autonomy wherever possible.
- Repetition
There are often times in a law practice when lawyers are called upon to
repeat their legal assessment of a situation to a client a few times. For
example, the client might be distraught or unfamiliar with the justice
system. Similarly, it may be necessary to take the extra time and explain
the situation on more than one occasion to a person with an intellectual
disability who learns differently. When a lawyer does this, they are more
likely to develop alternative and more effective ways of communicating with
the client over time, allowing the client to gain better understanding of the
communication.
- Clear and relevant communication
Just as people learn differently, some express their views differently.
Answers may not be forthcoming to complex questions, nor in the order
that the lawyer anticipates. But, if asked to express why they have come to
a lawyer, what they are hoping for, what the problem is, the story may
unfold with sufficient internal integrity that a lawyer can conclude the client
appreciates the relevant information and the foreseeable consequences of
different options.
- A task specific inquiry
This is a very important principle that is often forgotten. Someone may
have the capacity to make certain decisions and not others.