Alex Procope and Kim Whaley from WEL Partners co-chaired the recent Ontario Bar Association program: Your Comprehensive Guide to Section 3 Counsel. PBP Partners Mercedes Perez and Kelley Bryan joined the faculty of several leading capacity practitioners. This was the first full-day professional development program on this important role. Section 3 counsel is appointed for allegedly incapable people in guardianship and capacity proceedings. This unique position has been the subject of debate and clarification over the past 25 years. Section 3 counsel is involved to be the voice of their client for better or worse. From that starting point, the program went into significant detail, covering the following topics:
- At what stage of the proceeding should the appointment order be sought?
- Can or should any relief be granted before section 3 counsel is appointed?
- When is capacity in issue in a proceeding?
- Navigating client management and professionalism challenges
- How to present the allegedly incapable client’s position
- The What, When, Who, Why and How of capacity assessments
- What is the role of the Public Guardian and Trustee
- Avoiding negligence claims and personal costs claims
- Bringing a Habeas Corpus application
- The role of amicus curiae; and
- Concluding your role as section 3 counsel.
The program was recorded and is available for viewing at any time at through the link above.
Selections from the program material
Kelley’s Paper: Kelley Bryan Capacity Assessments and Section 3 Counsel
Kim’s Paper: “Between a Rock and a Hard Place: The Complex Role and Duties of Counsel Appointed under Section 3 of the SDA.”
Alex’s Paper: “The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward.”
PBP Lawyers routinely act as section 3 counsel, otherwise on behalf of allegedly incapable people and for attorneys and family members in capacity-related litigation. Read more about our recent POA and Guardianship or Capacity news and contact us if you need any related assistance.