Presentation on the role of section 3 counsel at the 2019 Estates and Trusts Summit

Alex Procope presented his paper: The Ongoing History of Section 3 Counsel: Origins of the Role and a Path Forward at day 1 of the 22nd Estates and Trusts Summit program on October 16, 2019. The Estates and Trusts summit is the largest professional development program presented by the Law Society of Ontario and was attended by over 400 registrants. A PDF of the paper is available for download here.

Section 3 counsel is the colloquial term for lawyers appointed to represent people who may be incapable in legal proceedings under Ontario’s Substitute Decisions Act. Usually these proceedings are requests for guardianship of the allegedly incapable person by one or more family members. The clients are often in the early stages of dementia or vulnerable due to some developmental disability or brain injury. If or how the role of section 3 counsel is any different from counsel for any other client has been a confusing issue for many decades.

Alex’s paper reviewed the law reform initiatives that were the foundation of our current guardianship laws and the duties of all lawyers set out in the Rules of Professional Conduct. His paper argues that the role must be limited to client-directed or client-centred advocacy. This is contrary to suggestions that section 3 counsel should take it upon him or herself to act in a proceeding without client instructions to do so. On one hand, this approach simplifies the role. The section 3 lawyer can firmly say that she or he is not a capacity assessor, witness, mediator, mobile arbitrator or whatever other role the other parties want the section 3 lawyer to fit into. On the other hand, confirming instructions from a potentially or near incapable client can be difficult in itself.

For the lawyers representing parties in capacity-related litigation, the paper included the following checklist with tips on how to treat your section 3 counsel:

  1. Facilitate, rather than obstruct, section 3 counsel’s private and confidential access to the client. Lawyers require confidential access to their client to ensure that the instructions obtained are independent and any risk of undue influence is minimized. A dispute over access to the client wastes money, casts the interfering party in a poor light, and may preclude the independent expression of the person’s wishes that may be relevant throughout a dispute. All parties have a role to play in ensuring that this threshold level of access is available.
  2. Provide information that will assist the section 3 counsel. Section 3 counsel are often starting with very little information about the practicalities of meeting with the client. Section 3 counsel already has the benefit of at least one party’s positions on the issues, but more specific details about the client can help prepare section 3 counsel to make the most of meetings. For example, how does the allegedly incapable person typically communicate to arrange meetings, are there independent caregivers involved, are there any notable communication disabilities like hearing or sight deficits, is the person more cognitively aware in the morning rather than the evening, or does the person tend to fatigue after a certain duration of conversation.
  3. Do not attempt to direct section 3 counsel. Section 3 counsel like any other counsel has full authority to determine the parameters of their relationship with the client. It is perfectly legitimate for other parties to ask section 3 counsel to explore certain topics with the client, while recognizing that the ultimate decision on when and how to do so lies with counsel.
  4. Do not ask the allegedly incapable person about the discussions with counsel. There is little benefit to a factual dispute about a client’s position. Section 3 counsel is there to advance the incapable person’s position independently. This will most often be the best evidence and other parties need to understand that sometimes people say different things to different people or in different contexts.
  5. Do not ask section 3 counsel to provide evidence of incapacity. The burden of establishing incapacity is generally on the party alleging it and an issue for a judge to determine. Section 3 counsel has no role and may be professionally obliged not to assist another party or the court in determining whether the client is incapable. Even confirming what the lawyer thinks the client is capable of doing could imply that the client is incapable of other relevant things so section 3 counsel may be choosing words very carefully by necessity.
  6. Do not presume that section 3 counsel is mandatory throughout. It may be that the issues in dispute can be determined without the participation of another lawyer. If the allegedly incapable person has had access to counsel, had their wishes shared and the sides of a dispute are otherwise represented then a lawyer without instructions to do more than present the client’s position may not add value to the court’s determination of the issues.
  7. Facilitate prompt payment of section 3 counsel. Litigation is expensive, and attempts to thwart section 3 counsel by limiting his or her access to funding are not uncommon. Disputes over cost can reveal confidential information to adverse parties. Section 3 counsel should be paid promptly in the first instance if funds are available. If necessary, the court may review the costs after the dispute is resolved or they can go into the assessment process.

PBP Lawyers routinely accept appointments for and act as counsel for allegedly incapable people which are often in the middle of very challenging family dynamics. If you are concerned that a party to a court proceeding has capacity issues and requires a lawyer, feel free to contact us.