Even if an individual subject to a guardianship is clearly capable to instruct
counsel, it can still be difficult for a lawyer to determine if they can actually deal
with the issues that the person raises. Some of the major complaints of clients
under a guardianship relate to circumstances that are a product of the person
being under a guardianship and having lost their autonomy, particularly if the
person is under the guardianship of the PGT. Issues such as lack of control over
how their money is spent, having no control over how much they can spend, or in
some cases not having control over the nature of their living arrangements are all
inherent to being under a guardianship. Unless it is possible to terminate the
guardianship, a lawyer’s ability to resolve these issues is limited.
For other questions, the lawyer must canvas whether the client understands and
appreciates the risks associated with their chosen course of action.
A. Ethical Issues Related to Determining Capacity to InstructFor a lawyer, deciding whether they can take instruction from a client under a
guardianship raises ethical issues. A lawyer should assume capacity to instruct
exists unless there is evidence to the contrary. As long as the client is capable to
instruct, the lawyer is obligated to follow the client’s instructs even when the
lawyer feels that the client’s chosen course of action is not in their best interests
and/or involves potential risks. The challenge, however, is determining whether
the client actually appreciates the risks related to a particular course of action.
In order to determine whether a client is aware of and appreciates the risks
involved in their chosen course of action, it is usually necessary for a lawyer to
gain an understanding of the client’s current situation and the potential impact
upon the client of altering that situation. The more serious the risks may be, the
more the lawyer should probe the client’s understanding of those risks and any
thoughts on how they might mitigate those risks. A lawyer cannot ignore risks
that may be present, nor can a lawyer allow their own concerns about those risks