Appeal Decisions (2017 ONCA 0516) part 1

The Appeal Decision can be found here, and a summary of the decision found here

Section 3, Capacity and Acting under Instruction

The panel had been asked to rule on when incapacity is official declared (on an assessment, on a judgement or on an entered order) and how that relates to the deemed capacity to instruct Section 3 counsel. The panel ignored that legal question but lauded the actions of Section 3 and her advocacy for her client.

When capacity is lost, has profound legal implications. It determines when the scope of your ability to control your life ends. It determines the type of lawyer you choose, or if one is appointed, whether they are a Section 3 or a litigation guardian. It is a gating factor for the appointment of a guardian or attorney. And of course, it determines who has authority to change the your legal documents such as banking arrangements.

Section 3 counsel is appointed when capacity is at issue at a hearing taking place under the Substitute Decision Act.  The person is “deemed” capable to instruct counsel, but the incapable people has none of the protections in typical a lawyer/client relationship. They do not choose the lawyer and cannot fire them. And they cannot withhold payment, or set limits on legal fees, as they are obligated by statute to pay Sections 3’s bills if they have the means. The incapable person typically does not attend hearings so does not know what is argued on their behalf.

Section 3 is not a substitute decision maker, but exists to assist the court in determining the persons capable wishes and instructions. The corollary is that a declaration of incompetence must end the “deemed capable to instruct” as to do otherwise would have a known incapable person, whose judgement has been determined to be faulty, being able to issue what are accepted as legally capable instructions.

The “deemed capable “instructions are protected by lawyer client privilege. Whatever the lawyer advocates is accepted by the courts as the persons instructions. It falls to the professionalism of Section 3 to inform the court if they believe the person is not capable to give instructions as despite the Act’s deeming provisions, as it is unlikely a person who is incapable has the agency to object.

In this case Section 3 requested the court change the no heroic measures clause of Mrs. Childs Power of Attorney to do not resuscitate – and that this be registered so first responders would follow it. The potential implications on Mrs. Childs life could be profound, as the Judge pointed out – seeking assurance these were Mrs. Childs instructions. Section 3 demurred.

The issue of whether Section 3 was acting under instruction, or acting as a substitute decision maker, ripples through this case. Section 3 last met with Mrs. Childs, to seek instructions, on May 19. Section 3 remained active in the case another 9 month. Even a capable person can’t provide instructions clear enough to cover all the motions that were launched and positions that were taken.

Mrs. Childs had a capacity assessment on May 14, 2015. The report was released on May 25. Mrs. Childs was determined to be incapable for both property and personal care. In his June 25, the application Judge found Mrs. Childs was incapable.

On August 14. the same Judge ruled that since a formal Order was not entered there was no declaration of incapacity and no need to appoint a litigation guardian.

On October 21st Section 3 tells the court “Once there is an assessment of incapacity and indeed, 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 from Mrs. Childs.  I would, under a Court order, however, it risks putting me as a witness instead of counsel.”

Taken together it seems to me that Mrs. Childs lost the protection a litigation guardian, who is not afforded the protection of lawyer client privilege as the client is not “deemed capable to instruct” while having a lawyer who would not seek instruction because she believed Mrs. Childs to be incapable, but appears to want to protect her ability to act with lawyer client privilege.

This issues ripples through the case.

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