A Section 3 counsel can be appointed whenever a person who is potentially incapable faces a hearing over any guardianship matter.
Their sole guidance in the substitute Decision Act is the incapable person is “deemed competence to retain and instruct counsel”. The actual role Section 3 is to play in hearing is not defined but the court is instructed in 3 places to consider the incapable persons current wishes. One expects one source for the court to hear that is from Section 3.
One assumes the legislature used such a short definition of duties as the lawyers rules of Professional Conduct require instruction before actions. Section 3 saw it differently. She states
Once there is … a finding of incapacity, even though we don’t have an entered judgment, it would make a mockery of section three for me to return to seek instructions
I am uncertain whether Mrs. Childs herself, if I had presented this new information to her, would prefer to …
As the basis to launch a motion that would result in almost $100,000 in billings for herself, and huge costs to other parties. And all of this is justified by writing “The entirety of the Mrs. Childs’ wishes filed with the court, she understood that there would be a day when she may need to leave Sand Lake and she expressed very clear preferences about where she would like to live in the event of having to leave Sand Lake.”
That assumption is in direct opposition to statements Mrs. Childs made to the capacity assessor after the Section 3 filed the wishes. Mrs. Childs states:
“I want to stay here as long as I can, until I die. Have someone write it down.”
When the capacity assessor asked if she were bedridden, did she think she should go to a nursing home or would she accept help at home. Mrs. Childs stated:
“I would have to accept help wouldn’t I? I am going to stay here as long as I can, until I pack it in.”
And when the capacity assessor suggested she might be happier with more company in a home Mrs. Childs stated
“I won’t go there…..”
Mrs. Childs is quite capable of giving instructions. Was Section 3 incapable of hearing then because she didn’t ask.
Section 3 describes Mrs. Childs statements to the capacity assessor as “incapable wishes”. The Substitute Decision Act uses “capable wishes” for wishes expressed when the person was capable and “current wishes” for wishes when incapable.
Capable wishes must be followed. Current wishes must be considered. Even when acting in the person’s best interest you have to take into consideration “the values and beliefs … the person held when capable” and current wishes “if they can be assertained”.
S 3 said of the Substitute Decision Act’s use of wishes
“It’s a silly word, in my respectful opinion, to use for such a serious issue about life and death, which is what we deal with.”
This is the representation that the Act forced on Mrs. Childs. The Public Guardian was well aware of this and did nothing. It make you wonder how the incapable are supposed to have their interested protected when the Public Guardian is silent and Section 3 neither talks with the client she represents or care about her wishes.
And through 7 months of “representation’ and 6 days of hearings Section 3 claimed Lawyer/Client privelege – which is designed to protect the clients instruction – but was used to protect a lawyer who did not consult her client.