In these situations, counsel must ensure that they are fulfilling their duty to
accommodate so that the client can engage in a solicitor client relationship, retain
counsel and instruct counsel.
Particular attention must be paid to gaining a clear understanding of who is the
client and who is providing instructions to counsel. In many situations, it will be a
parent or other family member who approaches you for legal advice. The family
member will often state that the individual could not possibly talk to you about the
legal issues that are being addressed. In ARCH’s experience, once we make
attempts to understand how the individual communicates and make the
appropriate arrangements to accommodate the individual’s disability related
needs, the individual can often instruct the lawyer. A family member or other
person may need to support the individual but the lawyer must be certain that he
or she is taking instructions from the individual. Counsel must also be careful that
the decisions of the individual are respected even though counsel or a support
person may believe that the decision made is not in the “best interests” of the
individual.
In other instances, it may be determined that the individual does not have the
capacity to instruct counsel. Although a family member or other support person
may have been making decisions for the individual for his or her entire life, a
valid power of attorney may not exist.
In each of these situations, counsel must clearly establish who is the client in the
solicitor-client relationship and determine whether the person providing
instructions has the authority to be making the decisions that may impact another
individual’s life.
For more on these issues and other issues of capacity, please refer to Chapter 4
on “Capacity to Instruct Counsel” in this Disability Law Primer.