Representing Clients with Capacity Issues


Representing Clients with Capacity Issues

Access to justice is critical for people with disabilities. However, dementia, traumatic brain injury, intellectual disability, substance use, mental illness, and other factors can impact a person’s ability to instruct counsel and make legal decisions. Litigation can cause additional stress, pushing a person with precarious capacity to the breaking point. Fortunately, basic practice strategies can bolster client capacity and support their participation in legal matters.

Adapting our work to accommodate disabilities is not just good practice — it is required by law. The United Nations Convention on the Rights of Persons with Disabilities (Article 12), ratified by Canada in 2010, requires States Parties to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others” and “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” People with disabilities are also entitled to accommodation under the BC Human Rights Code.

A client has capacity to instruct counsel if they understand the retainer agreement and the key legal and financial issues related to the lawyer-client relationship. The Law Society Code of Professional Code (Rule 3.2-9) recognizes that a client may be capable of making some decisions, but not others, and states that “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.” Since capacity hinges on what a client is able to understand, and is not static, good communication and case management can make all the difference in supporting access to justice.

Lawyers should assess what methods of communication work best for each client. Plain, straight forward language is ideal, including in the retainer agreement. Aim for a reading level of Grade 8 or lower. Sarcasm, jargon, and metaphor can confuse some people who have difficulty understanding information.

Avoid the need for snap decisions by providing information and advice well ahead of deadlines. If you must deliver large volumes of paperwork all at once, provide a short explanation in advance to ensure the client is not surprised and overwhelmed.

Keep meetings short and focus on a limited number of topics. Provide a short agenda in advance so the client knows what you will discuss. Create brief to-do lists after meetings to support follow-up. If you suspect that capacity may be an issue, make file notes on matters that confirm capacity, such as memory recall of previous conversations, the client’s familiarity with the legal process, or questions asked by the client that demonstrate comprehension.

Trusted support people can be involved to help some people with disabilities make, communicate, and implement their decisions. Supporters often understand a person’s unique communication needs and abilities. Their presence can bolster capacity and reduce litigation anxiety. In BC, supportive relationships can be formalized in a representation agreement. The person being supported retains full legal capacity to make their own decisions under this approach. It is important to remember that supporters are there to assist, not take over. Lawyers should also consider undue influence and issues related to privilege and confidentiality.

Promoting access to justice requires lawyers to accommodate clients with disabilities and work collaboratively to overcome barriers. The Canadian Centre for Elder Law has a number of resources to support best practices, including their new Inclusive Investing resources on supported decision-making and their undue influence reference aid. Find them at

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