their autonomy, they may lose some or all of the supports and protections that
they currently receive. Capacity involves an understanding of the potential gains,
along with the potential losses involved in asserting one’s decision making
autonomy.
If the client appears to see on only the potential benefits of removing restrictions
on their actions, and not the potential risks involved, then they may not be
capable to instruct counsel on that issue. At the same time a lawyer cannot be
too quick to dismiss a client as being incapable to provide instruction simply
because the client’s choices involve risks. In cases where capacity to instruct
may be in doubt, the lawyer should err on the side of finding capacity – and then
continue to assess capacity to instruct on a regular basis.
B. Communicating with GuardiansStatutory (aside from the PGT) and court appointed guardians are often close
relatives of the incapable person. There are both benefits and risks to a relative
having a large degree of control over the actions of a client. Relatives often know
the person and their needs intimately. This can allow relatives to provide the
specific types of support required. However, family members can also be
paternalistic and over-protective toward the incapable person. It is not surprising
that family members may value safety over autonomy. Unfortunately, this can
create tensions when the ‘incapable’ person recovers their capacity and seeks to
re-assert their autonomy. If a guardian is fearful of the risks involved in increasing
the incapable person’s autonomy, they may refuse to offer the person any
increased freedom. At this point a guardian’s actions may conflict with their
obligations under the SDA to promote the independence and autonomy of the
incapable person to the extent possible.^30
(^30) See Substitute Decisions Act, 1992 ss. 31(3) & 66(8)