By Lilith Finkler

Many lawyers encounter clients who are not capable of instructing them because of a disability affecting their memory or thought processes.

In previous generations, persons with disabilities were segregated from mainstream society. Today, persons with disabilities experience some of the same legal problems as their non-disabled peers.

Unfortunately, some clients do not understand or appreciate the implications of the civil litigation process. Some barely understand the role of a lawyer or judge.

In these circumstances, a lawyer will typically ask the court to appoint a litigation guardian who then instructs the lawyer on the client's behalf. This ensures that the lawyer is receiving directions from someone who understands the legal process and is not in a conflict of interest.

Unfortunately also, Rule 7 of the Ontario Rules of Civil Procedure, which provides for the appointment of a litigation guardian, applies only to proceedings before the courts.

The Public Guardian and Trustee becomes involved as substitute decision-maker of last resort only when the person meets the criteria set out under s. 6 or s. 45 of the Substitute Decisions Act.

The Statutory Powers and Procedures Act includes no such provisions. The Rules of Professional Conduct of the Law Society of Upper Canada are silent. Except for provisions in specific statutes, there is no equivalent to litigation guardianship before administrative tribunals.

What is an advocate to do at hearings before the Ontario Rental Housing Tribunal, the Social Benefits Tribunal, the Ontario Labour Relations Board, etc.? Advocates who are unsure of their clients'capacity to instruct have limited options.

First, an advocate must decide if a potential client is capable of instructing him or her. This is the advocate's responsibility. A doctor can offer an opinion. However, there are no provisions for assessors to perform assessments of capacity to instruct counsel under the Substitute Decisions Act.

One must exercise caution in making an informal assessment of (in)capacity to instruct counsel. Under the Mental Health Act, the Health Care Consent Act and the Substitute Decisions Act, the language describing capacity includes the words "understand and appreciate."

For example, does the client understand the legal problem? Does the client appreciate the implications of a tribunal hearing? A potential client must answer these questions to an advocate's satisfaction before signing a retainer.

Disagreement With Client

Sometimes we disagree with a client's instructions. We may think the client is acting against her or his own interests, although such behaviour does not indicate incapacity to instruct. Any lawyer who has responded to divorce applications will know that the rejected partner wants to litigate everything, including custody of the goldfish!

Further, we must not impose our own cultural and/or class biases in determining our client's capacity to instruct us.

For example, one client indicated that he wished to play music loudly in his apartment. He stated that if he could not do so, he preferred to terminate his tenancy, even if it meant becoming homeless.

This man had a psychiatric disability. We could have easily attributed his attitude to his psychological difficulties. When we first interviewed him, we asked basic questions about his understanding of the legal process. This client responded (to paraphrase) "I may be crazy, but I'm not stupid!"

We asked what he would do if his tenancy were terminated. He replied that he would stay with friends. He did not like shelters. Nonetheless, shelters were preferable to being unable to listen to music in his own home.

This client's conclusion was not our own. However, he had reached his decision with a clear understanding of the legal processes and appreciated the possible outcomes. This man was capable of instructing us.

Other situations are more complicated. One client was involved in a matter before the Ontario Insurance Commission. Counsel retained in that proceeding requested a psychiatric assessment.

The examining doctor decided that this client was not capable of instructing her lawyer. The case was complex and required an ability to concentrate and analyze.

The lawyer acting before the Commission informed us of the doctor's conclusion. He assumed that we, therefore, could not represent the woman on a matter at the Social Benefits Tribunal (SBT).

We agreed that the client was incapable of instructing counsel on a complex legal matter, although she was quite capable of instructing us on a simple legal matter. At SBT, the client's instructions were clear -"I want my money!"

Persons with poor judgment often ask us to act against their own interests. Sometimes, we are told to advocate that clients be deported, that they be cut off social assistance or that they be fired from their jobs.

We discuss the implications of a client's instructions and ensure that the individual perceives the outcome accurately. "If you are cut off social assistance, you will not have money to buy coffee or cigarettes. Do you want coffee?"

Occasionally, these exercises in logic are futile. We have told clients that we do not believe that it is ethical to demand they be deported, fired, etc. If they wish, they can act independently.

We explain to the client that although we will not comply with this request, we will help if they have other legal problems. Vulnerable adults have little reason to trust professionals. By allying ourselves with the person, rather than simply rejecting an absurd request, we leave the door open to future contact.

Immediate Action

On occasion, a legal problem, such as a deportation order or a sheriff's notice, requires immediate action. We describe possible remedies. Under pressure, people may refuse our advice, preferring to "wait and see."

As advocates, we feel conflicting emotions. We wish to offer our clients "space"to make informed decisions. However, we recognize limitation periods. Finally, we fear future liability for failing to act.

One client did not wish to pursue a set-aside (under the Landlord and Tenant Act) when she received a sheriff's notice. She did not believe that her landlord would evict her.

We wrote a summary of the facts and the advice we offered. We mentioned that our client was acting against our recommendations. The client signed the note, confirming the details.

A week later, the same woman came into our clinic with a worker. The client claimed we had refused to represent her. Fortunately, the previously drafted document was on file. We showed the letter to the worker and explained its significance.

Sometimes, a client describes an episodic disability such as manic depression. We may request a power of attorney for property and/or personal care. If the client later becomes incapable to instruct, a substitute decision-maker is in place.

One client obviously could not instruct counsel. She was unable to focus her attention on details of the case. We established an informal litigation guardianship. With our client's approval, we arranged to take instructions from her best friend.

We explained this agreement to the chair at the Social Assistance Review Board (SARB), and although it was accepted at the hearing, it was not mentioned in the decision rendered.

Sometimes, paid caregivers offer to provide instructions on their client's behalf. This possibility arises when someone is socially isolated.

Allowing a paid caregiver to instruct counsel is inherently dangerous. Although service providers are generally sincere, there are frequent conflicts between the needs of the client and the needs of the provider.

Even if there are no explicit conflicts between individuals, there could be conflicts of interest between the client and the agency providing care.

It is essential that any potential for conflict of interest be addressed before substitute instructions are accepted. Arrangements should be made in the event that a conflict of interest arises during the proceedings.

Once, a care provider wished to act as unofficial litigation guardian in a proceeding before the Ontario Rental Housing Tribunal. The client was entitled to a rent rebate due to her apartment's state of disrepair.

If a rebate had been granted, the client would have been issued an overpayment by social assistance. The client would not have benefitted monetarily. The care provider had a vendetta against the landlord and wished to obtain revenge. Ultimately, we declined the case.

Challenging task

Advocates may view these dilemmas with chagrin - it is challenging to represent questionably competent clients. Because of the added work, many individuals who are questionably competent remain unrepresented. Understandably, it is easier to avoid such clients.

Unfortunately, refusing to represent vulnerable adults or withdrawing service once difficulties arise, does not alter the larger problem.

Some form of substitute instructing must be implemented within the context of administrative tribunals, because individuals whose capacity is at issue are much more likely to appear before tribunals.

Unless the Public Guardian and Trustee and/or a similar public body agrees to take responsibility for substitute instruction, many vulnerable adults will be even further disadvantaged.

About the Author

Portions of this article were written while the author, Lilith Finkler, worked at Parkdale Community Legal Services in Toronto. While Ms. Finkler draws on her experiences at Parkdale, opinions expressed above are her own.

This article originally appeared in the December 17, 1999, issue of The Lawyers Weekly. Vol. 19, No. 31

Copyright © 1999 Butterworths Canada Ltd. The Lawyers Weekly