to cloud their judgement about whether the client understands and appreciates
those risks. To the extent that the client will consent to the lawyer speaking to
others about their circumstances, it is a good idea to canvas the opinion of
people such as the client’s doctor, social worker or other family members to
obtain as much information about the client as possible from a variety of
perspectives. This information may prove helpful when trying to assess the
client’s own understanding of their situation and the risks to which they may be
vulnerable.
For instance, while a client may be very clear about wanting to remove any
restrictions on their spending put in place by their guardian, restrictions may have
been put in place if the client’s resources are limited or to deal with behaviour
that might harm the client. Also, a guardian has an obligation to take action to
preserve the person’s resources. A lawyer should discuss this situation with the
client to confirm that the client understands what taking control over their
finances will entail and what will happen if they do not pay their bills or rent. It
may also be necessary to canvas the client’s understanding of the impact of their
disability on their ability to effectively manage their finances. As long as the client
understands and accepts the potential consequences of making their own
choices about how to spend their money, then a lawyer should follow the client’s
instructions and seek to limit or remove restrictions on spending, whether by
seeking to revoke a power of attorney, terminate the guardianship or through a
negotiated arrangement with the SDM.
Lawyers must also recognize that clients can move back and forth from periods
of capacity to periods of incapacity. A client may have to rely on the support of
that family member or former guardian again in the near future. The family
member could become unwilling to provide support. It is necessary to canvas this
issue with a client and ask what the client would do if they require assistance in
the future and their current family member guardian was unwilling to assist them.
It is sometimes necessary to confirm whether the client realizes that in gaining