that leads to intermittent periods of incapacity, it would be wise to plan for
such situations. A lawyer will need to consider what steps should be taken
to ensure that there is someone to instruct counsel, not withstanding the
periodic incapacity.
- Recording deliberations
It is important to make detailed records of difficult legal assessments.
Making a determination that an individual has or has not sufficient capacity
to make certain decisions or instruct counsel is one of those situations. It is
important for a lawyer to maintain detailed notes in the file recording the
conversation(s) or other facts that formed the basis of the assessment that
the client lacks capacity. It is usually a good idea to ask support staff or
another lawyer to attend meetings with a client who may lack capacity to
record what is said as well as provide a second opinion concerning that
client’s ability to instruct counsel.
- Second Opinions
At times it may be advisable for a lawyer to make their assessment of a
client’s capacity together with a colleague invited to the interview with your
client’s consent. Alternatively, depending on the circumstances, you might
consider retaining a professional to conduct a capacity assessment.
VII. COMMENCING LITIGATION
A. Delegation of Authority Under the Human Rights CodeThe Human Rights Code subsection 34(5) provides that an individual or
organization, other than the person who allegedly experienced discrimination,