Clients with Diminished Capacity: A Unique Challenge to the Lawyer-Client Relationship

Posted by  on February 27, 2019
Clients with Diminished Capacity: A Unique Challenge to the Lawyer-Client Relationship

Clients with diminished capacities present unique challenges to ensuring the sought normal solicitor-client relationship. Lawyers are to maintain the “normal solicitor-client relationship” insofar as reasonably possible when acting for clients with diminished capacity. The solicitor-client relationship assumes that the client has the requisite mental capacity to make informed decisions about their legal matters, and to instruct their counsel on how to act on their behalf. The ability to make informed decisions about one’s legal matters depends on a wide (and non-exhaustive) range of factors, including, but not limited to, age, sophistication and intelligence and mental and physical health.

Clients with Diminished Capacity: A Unique Challenge to the Lawyer-Client Relationship

Capacity can of course become an issue at any age; however, it statistically affects older clients. Advanced age often goes hand in hand with many degenerative diseases and illnesses that affect one’s mental and cognitive abilities, such as dementia and Alzheimer’s. All of us will eventually decline in our physical and mental capabilities as we age, all to varying degrees that will be influenced by a spectrum of factors that will determine this onset.

Capacity is complicated. Capacity is both a medical and a legal concept. Lawyers are not medical doctors, and are not permitted to perform medical assessments, or to make medical diagnoses in relation to capacity. A discernable difference between medical capacity and legal capacity exists, with lawyers being concerned primarily with the latter. The Rules of Professional Conduct define capacity as, “the ability to understand the information relative to the decision that has to be made, and the ability to appreciate the reasonable foreseeable consequences of the decision (or lack of decision).” If a client has a disability that impairs their ability to both make informed decisions and appreciate the consequences of those decisions, the lawyer will have to make a difficult decision as to whether the disability prevents the client from providing instructions, and entering into a legally-binding relationship. “Legal capacity” therefore concerns two essential elements: the ability to make informed decisions, and the ability to appreciate the consequences of those respective decisions.

If a client is incapable of providing instructions, the lawyer must decline to act.However, there are limits to when a lawyer can decline to act. These situations arise most commonly in the criminal context. If the lawyer reasonably believes that the client with diminished capacity does not have a representative and the inaction would result in irreparable and imminent harm, the lawyer may be required to act for the client insofar as is necessary to protect the client from being prejudiced, until a representative can be appointed.

As capacity is not static and changes with time, lawyers sometimes discover incapacity after the solicitor-client relationship has been well-established. In these circumstances, a legally authorized representative, such as a litigation guardian, or the Office of the Public Trustee, should be consulted to protect the legal interests of the client. Of course, this will depend on a myriad of circumstances, such as the reason for seeking legal instruction (for example, criminal matters where a custodial sentence is a possible sentence).

Lawyers have ethical and professional obligations that must be discharged to all clients, including clients with diminished legal capacity. Lawyers cannot simply “abandon” a client where and when they determine that the client may potentially be unable to instruct counsel. Lawyers should continue to act, preserving the legal interest of the client, until an authorized legal representative can be appointed.

It can sometimes be difficult to ascertain whether a client is having difficulty understanding a complicated legal test for a criminal defence, such as duress (which is understandable and expected), or whether the client is suffering from dementia, in which makes it difficult for the client to understand the legal test for duress. In any event, lawyers are required to be extra vigilant in ascertaining and ensuring the requisite legal capacity of a client, even if it means taking extra time.

CassandraBeaulacis a third year law student at the University of Windsor
Arun S. Maini is a criminal lawyer and former prosecutor with over 20 years of experience.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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