Rules of Professional Conduct

Section 3 of the SDA describes counsel for the incapable person in 168 words, 55 of them cover deemed competence to retain and instruct counsel. The remaining 113 words deal with payment.

There are no guidelines for Section 3’s duties. A lawyer/client relationship, however, is governed by the Rules of Professional Conduct. When a lawyer is appointed under Section 3.1.b “the person shall be deemed to have capacity to retain and instruct counsel.” A normal lawyer/client relationship is presumed.

A normal lawyer-client relationship is defined in 3.1-2 of the Rules of Professional Conduct as that of a “competent lawyer”. Competence includes “communication at all relevant stages of a matter” (3.1-1 d). In the comments, it is clear this communication is with the client. In comments:

  • “[8.1] effective communication with the client will vary”
  • In [12] “the client should be informed”
  • In rule 3.2-1 in relation to the quality of service comment [6] states “a lawyer should be prompt in… reporting developments to the client.”
  • In 3.3-1 [1] – regarding confidentiality, “A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them.”

The other part of a normal lawyer/client relationship is the client’s role, which is to instruct the lawyer. This concept is reflected in almost every rule and comment in the Rules of Professional Conduct, for instance in 3.2-4 regarding Compromise and Settlement, which Section 3 reports Mrs. Childs is desirous of, comment [1] states “When appropriate the lawyer shall inform the client of alternate dispute resolution options and, if instructed, take steps to pursue those options.”

On several occasions, we have put forward suggestions to mediate or arbitrate issues.  Section 3 should have informed Mom and gotten her instructions. That did not occur.

The PGT says Section 3 is necessary so the incapable person had a voice in hearings. They could be only mechanism for the court to know the incapable person’s position. In the Rules of Professional Conduct (3.4-3 [1]) the lawyer is bound to advocate according to the client’s instructions.

In July 2015 Section 3 began an extensive litigation process without instructions from, consulting or even meeting with her client. Instead of speaking with her client she relies on information she filed that was later contradicted by Mrs Childs statements of her current wishes recorded in the capacity assessment. It would be speculation to suggest Section 3 did not speak to Mrs Childs as Section 3 did not want Mrs. Childs instructions as they might differ with her plan to file a motion.

Section 3 stated that her duty was to act on best interests. This is not Section 3 duty. Best interests, according to Section 66(4) of the Act, require consideration of:

  • (a) the values and beliefs… the person held when capable…;
  • (b) the person’s current wishes, if they can be ascertained;

The Act could have applied this to Section 3 either in paragraph 3 or in Section 66(4). It did not. Section 3 is not to present best interests, but to present the client’s instructions, capable wishes and current wishes so that the court and guardian can determine best interests.

But then Section 3 also did not have Mrs. Childs instructions when they suggested that the court alter the ‘no heroic measures’ provision of Mrs. Childs PoA for personal care, to add a do not resuscitate provision. Or when they supported a motion that Mrs. Childs property in the possession of children could be kept by them until her death.

It was as if Section 3 acting on her own personal beliefs – outside her role as Mrs. Childs appointed counsel.

Not consulting with her client, or seeking instruction has resulted in endless litigation, support Michael’s ill-conceived guardianship plan and the imposition of BMO’s property management plan that is still months away from completion. That would be ok if Mrs. Childs capable and current wishes were being followed – but after the statements to the capacity assessor including:

I want to stay here as long as I can, until I die. Have someone write it down.”

Section 3 had an obligation to seek additional instruction but instead proceed without even a grunt of acknowledgement from her client.

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