Capacity Considerations and Your Client

  • December 04, 2015
  • Kimberly A. Whaley

Whatever your practice area, all lawyers will benefit from knowledge of the legal presumptions and considerations concerning decisional capacity. With a rapidly ageing population, capacity issues are now more prevalent than ever in a client retainer.

2015 represents an important milestone in the history of the Canadian population: for the first time, the number of seniors will exceed the number of children. While it is certainly not the case that all older adults have mental capacity challenges, with longevity comes an increase in occurrence of medical issues affecting capacity, as well as related diseases and disorders and in turn an increase in an individual’s susceptibility to being vulnerable and dependent.

What is “Capacity”?

There is no encompassing legal or medical definition. Mental capacity is a highly complex area, and the characterizations of capacity and incapacity can be somewhat elusive, with medical, legal, and evidentiary factors to consider. Making matters more complicated is the fact that capacity can fluctuate over time, with different tasks, and in different situations. An individual may be capable regarding some tasks, such as making a testamentary document, while incapable respecting other tasks, such as managing one’s property. Also, an individual may be capable regarding some tasks at certain times and incapable of the same tasks at other times.

Notably however, all individuals at law are presumed capable of making all decisions, and that presumption will only be set aside where there is clear and cogent evidence of incapacity. Our legal system prioritizes the autonomy of individuals to make decisions on their own behalf.

The Supreme Court of Canada decision of Starson v. Swayze 2003 SCC 32 was helpful in explaining capacity generally, including that the presence of a mental disorder must not be equated with incapacity. Major J., emphasized that the cognitive ability to process, retain, and understand the relevant information is key to capacity. A person must “be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.” A capable person simply requires the ability to appreciate the consequences of a decision and not necessarily the actual appreciation of those consequences. Mental capacity is not equated with correctness or reasonableness. A capable person is entitled to be unwise in his or her decision-making. 

A Lawyer’s Duty

A lawyer can only act on the capable instructions of a client. Therefore, a prudent lawyer must consider issues of capacity. It is important to look for potential red flags and ensure that your client is capable of undertaking all tasks related to the legal transactions in question and indeed of instructing you. Clearly document all steps taken to address capacity concerns. Documented notes may be required as evidence of capacity if there is a challenge after the retainer has ended. Spend enough time with each client to ensure that you are receiving capable instructions. 

Indeed, it is the responsibility of the drafting solicitor to assess the client’s capacity to instruct counsel, as well as his or her capacity to execute a Will, grant or revoke a power of attorney, enter into a real estate transaction, contract, make a substantial gift, enter into a marriage, separation, or divorce etc.  This does not mean to suggest that in discharging this duty of care a lawyer may not recommend, encourage, or suggest a formal capacity assessment by an assessor, especially where litigation is likely, or in borderline cases. With that said, assessments should be approached and undertaken carefully, with ‘rights’ advice, due to their negative impact on autonomy. As part of the protections afforded under the Substitute Decisions Act, 1992, SO 1992 c 30 (the“SDA”) individuals undergoing capacity assessments must be given “rights” advice, that is, fulsome information on their legal rights to refuse an assessment or challenge the outcome of an assessment.

The SDA also requires that an individual whose capacity is at issue in a proceeding be served with notice of the proceedings. The individual, regardless of capacity, has the right to take part in the proceedings and have access to a lawyer. The Public Guardian and Trustee may be directed by the court to arrange legal representation for an individual who does not have counsel and whose capacity is in issue in proceedings under the SDA, pursuant to section 3 of that legislation, otherwise referred to as section 3 counsel.

While clients with potentially compromised capacity may pose challenges for their lawyers, some guidance can be found in the Rules of Professional Conduct. For example, Rule 3.2-9 requires a lawyer to maintain as much of a regular solicitor-client relationship as possible when dealing with a client with compromised capacity.  Also, under the same Rule, should a client become incapable of giving instructions subsequent to the retainer, a lawyer may need to take steps to have a lawfully authorized representative appointed, such as a litigation guardian or seek the assistance of the Public Guardian and Trustee, or suitable other. A lawyer has an ethical obligation to ensure that the client’s interests are not abandoned. A lawyer too, has an ethical obligation to ensure that the client is not being done a dis-service if the client does not have the requisite capacity to give instructions. A lawyer must be very careful in retainers where capacity is at issue and must never act in a manner so as to substitute the lawyer’s own decisions for the client.


The goal of the SDA and related case law is dual: To protect vulnerable individuals while at the same time respecting their autonomy. While the vast majority of retainers with older adults will proceed without any concerns, it is important as a legal practitioner to always keep this goal, and issues of capacity, in mind.

Kimberly A. WhaleyAbout the Author

Kimberly A. Whaley is the founder of Whaley Estate Litigation. Her practice focuses on advising, counselling, dispute resolution, litigation and mediation of estate, trust and capacity proceedings, power of attorney, guardianship matters and elder law.

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