This article explores the ethical dilemmas surrounding the process of obtaining consent and assessing capacity for elderly individuals with cognitive impairments. As the aging population grows, so does the careful consideration of their autonomy and protection of their interests in legal decision making. To exercise caution, lawyers can employ strategies such as effective communication, encouraging advance directives and supported decision-making and adhering to ethical standards. Regular monitoring and review of the client’s capacity and preferences are also not to be forgotten.
The general presumption is that if you are eighteen years of age or older, you are considered “capable”. Having capacity means being able to understand the relevant information for decision-making and appreciate its consequences. Under the Rules of Professional Conduct, lawyers are required to thoroughly evaluate and consider whether, given the specific circumstances of the case, they can effectively provide such services with the requisite level of competence. A client's decision-making capacity can be influenced by various factors such as experience, age, intelligence, and mental and physical health. Furthermore, it is noted that capacity is not static and can fluctuate even over short periods of time.
Let’s examine two cases where solicitors did not adhere to their duty of care in assessing the capacity of their client. In the 2023 case of De Smedt v Cheshire et al., a will was signed while the testator was suffering from dementia and was ill to the point of being hospitalized. The solicitor was asked to make a new will. However, she only met the client twice: once in person and the other time over the phone (where the reception was poor), the client was not an existing client of hers, there was no discussion about the client's personal history or medical condition, she failed to document the reasons for considering the client capable of making a will and her notes were incomplete and relied heavily on memory. In light of all this evidence, the judge set aside the will finding that the testator was incapable at the relevant time to sign the will. In the 2018 case of Baron v. Mamak, a twenty-four years younger Lithuanian housekeeper married an older man to care for him until his death, as he didn't want to go to a nursing home. Instead, she exploited him for financial gain, transferring his house title to her son and naming her the sole executor and beneficiary of his estate. The solicitor failed to account for the client's limited proficiency in English when drafting the will, did not make arrangements for an interpreter and did not conduct a separate meeting with the client, independent of his future wife, before drafting a will that left all of his assets to her. There was also no discussion of the value of the property being transferred to the housekeeper’s son. The judge highlighted the fact that the solicitor felt below the requisite standard of care.
As we reflect on those two judicial decisions highlighting the ethical dilemmas surrounding consent and capacity assessments for elderly individuals with cognitive impairments, it becomes evident that progress must be made in making sure every lawyer is appropriately trained and cautious of signs of incapacity and that the right tolls are at their disposition. The Consent and Capacity Board in Ontario adjudicates conflicts on consent and capacity matters, including appeals on incapacity determinations by physicians, disputes over treatment consent by substitute decision-makers, and challenges to involuntary psychiatric patient status under the Mental Health Act. The Capacity Assessment Office trains eligible health professionals to become capacity assessors under the Substitute Decisions Act. Additionally, it maintains an up-to-date roster of qualified assessors, offers ongoing education and consultation services to assessors, provides financial assistance to individuals seeking assessments but facing financial constraints, addresses questions related to capacity assessments and assists in locating assessors fluent in languages other than English.
As making sure that a client is fully capable of giving directions is essential, it is not without its difficulties. While signs such as the client exerts pressure for immediate action on the lawyer, a radical departure from the previous will, lack of focus, confusion or emotional distress are often easy to observe, others such as undue influence, isolation or pressure from beneficiaries requires further attention. Preventative measures such as further assessments, independent legal advice or refusing to act for the client are to be considered in order to protect the client’s interests and fulfil the lawyer professional responsibilities. While protecting the self-determination of the clients is always expected when handling situations where consent and capacity are at cause, properly balancing autonomy and paternalism can be controversial. Intervention may become necessary in some situations. Unfortunately, the law does not solve all the clinical problems. It all resides in the balance between empowering elders to make decisions and ensuring their well-being. Nevertheless, as our understanding of incapacity and aging progresses, it is crucial to continue research, dialogue, and policy development to protect the rights of all individuals, regardless of age or cognitive status.
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