Presentation on Feb. 23, 2015 on "Contemporary Legal Challenges: Applying the Rules of Professional Conduct"

1. Diminished Capacity and
the Client
Omar Ha-Redeye
AAS, BHA (Hons), PGCert, JD, LLM(c)
CNMT, RT(N)(ARRT)
Feb. 23, 2015
Bond Place Hotel, Toronto, Ontario

2. Why is Capacity so Important
• Aging population
• Increased awareness of
mental health
• Recognition of capacity on a spectrum
• Rules of Professional Conduct
offer general instruction
• Do not provide clear guidance and is open to interpretation
• Statutory provisions and case law around fitness to stand
trial do not help with clarifying relationship between the
lawyer and the client or the lawyer's role

3. Rule 3.2-9 of the Rules of
Professional Conduct
• When a client’s ability to make decisions is
impaired because of
• minority,
• mental disability,
• or for some other reason,
• the lawyer shall,
• as far as reasonably possible,
• maintain a normal lawyer and client
relationship.

4. What is Normal Anyways?

6. Interpreting Rule 3.2-9 –
Presumptions
•Commentary [1]:
• presumption that the client has capacity
• depends on factors:
• Age
• intelligence
• mental health

7. Interpreting Rule 3.2-9 –
Presumptions
•Client capacity is not static
• can come and go.
• Is there a distinction between an initial assessment,
and where there is a long standing relationship and
diminished capacity begins to arise?

8. The Role of Medicine in Capacity
• Medical parameters of capacity:
• the ability to communicate a choice;
• the ability to understand relevant information;
• the ability to appreciate the consequences; and
• the ability to rationally manipulate the information
• Capacity for making medical decisions may not be
sufficient for legal decisions

9. Interpreting Rule 3.2-9 –
Protecting Interests
•Commentary [3]:
• If the client cannot make decisions for
themselves, lawyer may be required to
take steps to secure a representative to
“protect the interests of the client”.
• a litigation guardian
• Public Guardian and Trustee

10. New Commentary: Authorized
Disclosures
• Commentary [5] of Rule 3.2-9: lawyer’s authority to
disclose necessary confidential information when
taking protective action on behalf of a client or
person who lacks in capacity may be implied in
some circumstances
• If the court or other counsel becomes involved, the
lawyer should inform them of the nature of the
lawyer’s relationship with the person lacking
capacity.

11. New Commentary: Authorized
Disclosures
• commentary [10] of rule 3.3-1:
• client’s authority for the lawyer to disclose
confidential information to the extent necessary
to protect the client’s interest may be inferred in
some situations
• where the lawyer is taking action on behalf of a
person lacking in capacity to protect the client’s
interests until a legal representative can be
appointed

12. New Commentary: Authorized
Disclosures
• In determining whether a lawyer may disclose
confidential information in these situations, the
lawyer should consider all of the circumstances,
including:
• the reasonableness of the lawyer’s belief that the
person lacks capacity;
• the potential harm that may come to the client if no
action is taken; and
• any instructions the client may have given the lawyer
when capable of giving instructions about the authority
to disclose information.

13. What if There is a Conflict?
• as an officer of the court, counsel is entitled and
may be required to raise the issue of fitness if s/he
believes that the client is unfit
• Still undecided is whether counsel is entitled to raise
issue of fitness against the wishes of the client
• R. v. Szostak, 2012 ONCA 503 at para 71
• Similar issues for capacity generally

14. What was Not Adopted from
Model Code
• Commentary 2: A lawyer should decline to act for a
person incapable of giving instructions
• unless the lawyer reasonably believes there is no other agent
or representative, and
• failing to act could result in imminent and irreparable harm
• Commentary 4: A lawyer may disagree with a legal
representative’s assessment of what is in the best
interests of the client under a disability
• judgment of the legal representative should prevail as long as
there is no lack of good faith or authority,
• may require reporting the misconduct to a person or
institution such as a family member or the Public Trustee

15. Substitute Decision Making for
Incapable Parties in Ontario
• substitute decision-makers (SDMs) give informed
consent on behalf of incapable patients
• must follow the patient’s prior capable wishes and
consider the patient’s values and beliefs
• SDM medical decisions can differ from decisions
that the client or other legal guardians might make

16. How Ontario is Different
• Ontario differs from other jurisdictions as follows:
• “(a) does not allow prior capable wishes to be given
effect without interpretation by an SDM (except in
emergencies);
• (b) does not prioritize formalized ‘advance directives’
over informally expressed wishes, values and beliefs;
and
• (c) places a great deal of emphasis on contextualizing
health care decision-making in the patient’s current
health condition”
• Judith Wahl, Mary Jane Dykeman, Brendan Gray, “Legal Capacity, Decision‐Making and Guardianship,”
January 2014

17. Families do not Always Enhance
Voices
• People with disabilities have some of the most pressing
needs
• But still have one of the “most poorly understood support needs
and preferences”
• Compliance is not necessarily consent
• voices can be even more silenced in family
• “familiar interactions tend to be characterized by habitual and compliant
behaviors”
• Caregivers should give time to collect thoughts and
participate in discussions where possible
• Krista James, Laura Watts, “Understanding the Lived Experiences of Supported Decision-Making in Canada,”
Canadian Centre for Elder Law, March 2014

18. Different Levels of Capacity
• focus on a functional ability as opposed to a
functional disability
• Examination of decision-making capacity
• capacity to marry < power of attorney for personal
care < a power of attorney for property < make a
will < enter into a contract < enter into a trust
• Ian M. Hull and Suzana Popovic- Montag, “Testing for Capacity and Undue lnfluence: A Pract¡cal Guide,”

19. American Bar
Association,
“Assessment of Older
Adults with
Diminished Capacity:
A Handbook for
Lawyers,”
https://www.apa.org/
pi/aging/resources/gu
ides/diminished-
capacity.pdf

20. Grounding Guardianship in Rights
• A rights-based approach to guardianship should
emphasize the following:
• 1) Respect for inherent dignity and worth
• 2) Respect for and promotion of individual autonomy
and independence
• 3) Promotion of full and effective participation and
inclusion in society
• 4) Promotion of substantive equality
• 5) Promotion of accessibility
• See Convention on the Rights of Persons with Disabilities (CRPD) Articles 3, 12

21. Towards a Better Future of
Guardianship
• 1) Guardianships should be used sparingly. Regularly
monitor it by a “competent, independence and
impartial public authority or judicial body” and should
not last longer than is required (p. 18).
• 2) Foster means to complain of mistreatment of abuse
and be taken seriously.
• 3) Institute complaint mechanisms for people subject
to guardianship.
• 4) Facilitate feedback on the system of regulation of
guardianship.
• Kerri Joffe, Edgar‐Andre Montigny, “Decisions, Decisions: Promoting and Protecting the Rights of
Persons with Disabilities who are Subject to Guardianship,” January 2014

22. Techniques to Enhance a
“Normal” Relationship
• A. Engender Client Trust and Confidence: develop
rapport, spend time, interview alone, emphasize confidentiality
• B. Accommodate Sensory Changes: minimize background
noise, maintain eye contact, increasing lighting, use large font
• C. Accommodate Cognitive Impairments: break down
complex issues slowly, repeat and summarize, use multiple short meetings
• D. Strengthen Client Engagement
in the Decision-Making Process
• ABA Handbook