13.13 – The Client With Questionable or Limited Capacity

Any time you take on a client, you must consider whether the client has the capacity to give you instructions, and you must remain aware of the capacity issue throughout the relationship. 

Generally speaking, you cannot represent a client who lacks the capacity to give you instructions unless either you were appointed by a court or tribunal or by operation of statute. If you believe a potential client to be legally incapable of giving instructions, then Commentary [2] to Section 3.2-9 of the Code advises that you should decline to act unless you reasonably believe that the potential client has no other agent or representative and a failure to act could result in imminent and irreparable harm. In that case, you may act on behalf of the person only insofar as necessary to protect them until a legal representative can be appointed.

You may, however, take on a client of marginal capacity if that client is competent to give you instructions on some, but not all, matters: Commentary [1] to Section 3.2-9 acknowledges that a client may be capable of making some decisions, but not others. It also provides the following guidance for determining whether a client has capacity:

 [1] … The key is whether the client has the ability to understand the information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision. 

If a capacity issue arises during the retainer, you must maintain a normal client-lawyer relationship to the extent reasonably possible, but you may need to take steps to have a legal guardian appointed or to obtain assistance from the Office of the Public Guardian and Trustee. You have an ethical obligation to ensure that your client’s interests are not abandoned and must continue to act to preserve and protect your client’s interests until a legal representative is appointed. See Commentary [3].

Familiarize yourself with Rule 3.2-9 of the Code and consider how your duty of confidentiality applies where you have a client who lacks capacity. See the Commentaries to Section 3.3-1 of the Code, particularly 3.3-1(10).

Remember that you and your staff will need a flexible approach if you find your client has an increased risk of facing capacity concerns. It can be worthwhile to invest in specific training for your staff that is pertinent to the clients with whom they are frequently in contact. At a minimum, ensure all communications with the client are well-documented, and take steps to ensure your staff are equipped to manage the client.

Remember that you are not a social worker. You are not trained or licensed to provide counselling or social supports. Familiarize yourself with the local community resources that are available to assist in this regard, particularly those that offer advocacy and court services. You may learn more by contacting services such as Saskatchewan 211, which assists in connecting people with local community and social services.

The Client with Mental Illness or Impairment

While representing a client with mental illness or impairment can significantly impact the lawyer-client relationship, the presence of illness or impairment does not necessarily mean the client will be unable to instruct counsel. However, it could mean the client may have difficulty understanding your advice or providing you with instructions. In these circumstances, it is important to provide all your advice in writing and ask the client for written instructions. If you cannot get written instructions, confirm the lack of instructions or verbal instructions in writing. Ultimately, if you cannot get instructions on which you can rely to proceed, you may need to withdraw or close the file, and inform the client in writing.

In this module, our focus is on clients living with chronic and serious mental illness. In Assisting the Client Living with the Effects of Serious Mental Illness Alberta lawyer Averie McNary offers some excellent tips for working with clients living with chronic and serious mental illness whose capacity may be fluid, including:

• Have patience. Be a careful and empathetic listener. Take time to explain.
• Work within your client’s best interview times and circumstances. Medication, environment, and sleep needs may make certain times and/or places more opportune for constructive meetings. 
• Enlist a trusted family member or friend to assist and support. Ms. McNary notes: “This person can be a great help, provided the client consents to their participation and the person is reasonably trustworthy. Yes, the supporter may influence the client. However, provided the influence is not “undue”, it is better than the alternative.”
• Learn how to speak with the potentially delusional client. This might include:
  • acknowledging your client’s experience and not arguing with their reality;
  • seeking areas of agreement; 
  • asking permission to convey difficult information; and
  • providing information with humility.
• Be realistic about your client’s ability to participate in processes that require comprehension of other perspectives, such as mediation or negotiation.
• Safeguard procedural fairness and do what is within your power to provide it.
• Know when you can do no more for your client.