Can an Allegedly Incapable Person Retain Counsel in a Guardianship?

Last week I spoke at the Law Society of Ontario’s Annotated Guardianship Application 2021 program, which was co-chaired by Jan Goddard and Ian Wright. My topic was “Representation of a Person Alleged to Be Incapable”.

I approached this topic by reviewing this question: If someone who is alleged to be incapable wants to retain you as counsel in a guardianship proceeding under the Substitute Decisions Act, 1992 (SDA), can you accept the retainer?

In short, the answer is yes. The answer is the same even if you are paid by a third party such as an attorney for property or guardian of property.

Allegedly Incapable Persons in Guardianship Matters

Rule 1.03 of the Rules of Civil Procedure in Ontario defines a person under disability to include a person who is mentally incapable within the meaning of section 6 or 45 of the SDA in respect of an issue in the proceeding. The SDA defines incapacity in terms of capacity to manage property and capacity to make personal care decisions. Generally, persons under disability are not permitted to act on their own behalf in litigation and must be represented by a litigation guardian (Rule 7.01(1)). However, litigation guardians are not mandatory in SDA proceedings (Rule 7.02(2)), which includes guardianship applications.

The SDA requires that guardianship applications be served on the person alleged to be incapable (subsections 69 (1) and (3)). Any party served with a guardianship application can participate in the case by serving a notice of appearance among other things. There is no bar in the SDA to an allegedly incapable person or even an incapable person participating in the application as a party. Any party can have legal representation. Notice of a guardianship, the right to legal advice and the right to oppose a guardianship are all fundamental to guardianship proceedings.

Duties of Lawyers Representing Persons with Diminished Capacity

Another interesting issue is whether there is any distinguishing the role for counsel retained by an allegedly incapable person with counsel appointed for him or her (aka section 3 counsel). Looking at the SDA and the lawyer’s professional obligations, it appears that there is no difference in the two roles.

The Law Society of Ontario’s Rules of Professional Conduct do not have special provisions for lawyers acting for allegedly incapable parties to guardianship applications or for lawyers appointed in them.

The Rules do speak to relationships with a client with diminished capacity. When a client’s ability to make decisions is impaired because of mental disability or otherwise, the lawyer will need to treat the relationship as a normal lawyer-client relationship to the extent as reasonably as possible (Rule 3.2-9).  In addition to accommodating the client’s disabilities to obtain instructions, human rights obligations must be followed (Rules 6.3.1-1 and 6.3.1-2).

Regardless of whether a lawyer is retained by an alleged incapable person or appointed as section 3 counsel, the lawyer will need to represent the client based on the client’s instructions in accordance with the lawyer’s professional obligations. Professional obligations in SDA proceedings include that the lawyer must only act on capable instructions as with any other normal lawyer-client relationship. Section 3 of the SDA provides that the client is “deemed” capable of giving instructions to appointed counsel, but this has been interpreted as not going so far as to permit the lawyer to act on instructions that the client is not mentally capable of giving (see, for example, Sylvester v. Britton at paragraphs 60 and 61).

Capable instructions can be challenging to ascertain where the client has some diminished cognitive abilities. It is the lawyer’s responsibility to distinguish capable instructions from incapable ones to the extent possible keeping in mind that the lawyer ought not to become a filter of the client’s wishes. It is ultimately the Court’s decision whether a guardianship should be imposed over a person wishes – which is a significant limit on autonomy.

I find it helpful to adjust my expectations for client capacity depending on what the client does or can ask me to do. For example, a client might not be capable of appointing a new attorney, yet still be capable of asking me to advocate for a preference between two opposing potential guardians.

The lawyer’s professional obligations also require that client confidentiality be maintained throughout. The client must generally consent to a disclosure of confidential information, which implies that the client must be capable of doing so. As such, a lawyer should only report to the other parties or the court on what the client has told the lawyer to the extent that the client instructs the lawyer to do so. The Rules do also provide some ability to disclose information so the lawyer can take protective steps so as not to abandon the client’s interests. This exception however is not carte blanche for the lawyer to take any steps that the lawyer deems are in the client’s interests (see Ferreira v. St. Mary’s General Hospital for a discussion of abandonment of interests issue).

Finally, in acting as an advocate for clients, the lawyer’s function is openly and necessarily partisan. Subject to very limited exceptions, the lawyer is not obliged to assist an adversary or advance matters harmful to the client’s case. The lawyer should never waive or abandon the client’s legal rights without the client’s informed consent. A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination, or challenge. As such, the lawyer should not and the parties and judge should not ask the lawyer to comment on the lawyer’s views of the client’s capacity. The lawyer may only be able to say that she or he has no instructions to oppose a guardianship in cases where the client truly is incapable of communicating any instructions, and the other parties and court will be free to move forward with the application without anything further from the lawyer or person alleged to be incapable.

The duties to the client and the court for counsel for an allegedly incapable person appear to mirror each other whether retained by the client initially or appointed.

Legal fees for the allegedly incapable person

From a practical perspective, a retainer is the agreement between a lawyer and a client. It does not necessarily require the payment terms to be a part of the agreement. Where the lawyer’s fees are paid by a third party such as an attorney for property or Legal Aid Ontario, the payment terms would simply not form part of the retainer agreement. Accordingly, even a person who is incapable of managing their own property could still have the capacity to retain a lawyer – if the lawyer’s fees are dealt with by some other means. Lawyers representing allegedly incapable persons routinely represent clients where payment is made by a third party in guardianship applications.

It is respecting payment that section 3 counsel can be treated differently from counsel retained directly by the allegedly incapable person. The SDA includes some special legislation with respect to the the payment of fees (see SDA subsections 3(2) and 3(2)).

In any event, the fiduciary duties of an attorney or guardian or property would oblige him or her to pay for counsel engaged by an allegedly incapable person directly so even without an SDA appointment, the lawyer for the allegedly incapable person’s lawyer should be paid.

Other Issues When Representing Allegedly Incapable Persons

The role of counsel for the allegedly incapable person is identical to the role of section 3 counsel in fundamental respects. Both will also experience similar challenges in representing allegedly incapable persons. These include difficulty in obtaining instructions when someone is reliant on other adverse family members, challenges rooted in the client’s cognitive impairment, or when the client simply does not want to litigate with their loved ones.

An additional challenge that section 3 counsel faces is that other parties seem to be emboldened in taking steps to have the court remove section 3 counsel as was tried in the Sylvester v. Britton case noted above.

Thank you for reading.

-Alex Procope

To discuss representation of an allegedly incapable person with Alex Procope of any other PBP lawyer, please contact us at 416-320-1914 or