- Not evaluating prior knowledge
A lawyer is not testing a client’s prior knowledge but is instead inquiring
whether the client has sufficient understanding to appreciate relevant
information and the effect of the decision they are making.
- Evaluate your own assumptions about disability
Many of us have lingering stereotypical assumptions about disability. For
example, persons with communication disabilities are frequently assumed
to lack ordinary mental capacity. A particularly common assumption is that
someone with a mental health issue lacks the capacity to make all sorts of
decisions. These and similar assumptions are neither acceptable on a
human relations level nor are they ethical or legally valid.
- Client comfort levels and appropriate accommodation
All of us think better when we are comfortable in our surroundings and feel
a rapport with the person we are talking to. If a lawyer has concerns
respecting capacity, it may help to make sure that the client with a disability
feels comfortable in the lawyer’s office. It may help to speak to the client
about the disability and to ask if the client requires further or different
accommodation. Lawyers may find the ARCH article “Providing Legal
Services to People with Disabilities”, Chapter 2 of this Primer, useful in this
regard.
- Episodic loss of capacity
Any client might lose capacity tomorrow as a result of a significant health
incident or an injury. A lawyer then will face the dilemma of no longer being
able to take instructions from that client on an active file. A lawyer can hope
that the individual has arranged for such eventualities by way of a power of
attorney. Where a client has indicated that they have an episodic disability