- Canada’s aging population, the rise in dementia and the large intergenerational transfer of wealth creates conditions for disputes that pit self-interest against the persons capable and current wishes for their life. The person is not likely a participant in the hearings as their capacity is an issue. If, as in Ontario, counsel is appointed and the person is deemed capable to instruct, the reality of capacity determines the actual ability to instruct counsel in cogent ways that conform to the persons capable intentions. In the absence of counsel informing the court the person cannot instruct, positions are taken as instructions from the person, and protected from examination by lawyer client privilege. This risks courts authorizing instructions given by incapable persons, if counsel fails to recognize or report actual incapacity.
- In this case Section 3 continued to take positions before the court long after she stopped informing her client of issues in the proceedings and seeking instruction. The Judge ignored the reality of incapacity, which he had ruled was the case in 2015 ONCS 4036, yet since an order had not been formally entered, allowed Section 3 to continue to represent the person. Mrs. Childs was denied the protection and fundamental justice of a litigation guardian, while suffering the fundamental injustice of having positions advanced in court, as if they were hers, by counsel that did not consult her.
- This undermines the course of justice as parties and pits the duties of guardians to follow current capable wishes against lawyer acting without instruction. That 2015 ONSC 6616 reflects Mrs. Childs wishes at all is entirely due to C. and I who continued to argue for her rights and wishes at great cost and time. In assigning costs the trial Judge did not recognize this effort in fact denigrated it while praising Section 3 who acted without instruction. He assigned significant costs against us. The Appeal court upheld his decisions also praising Section 3’s advocacy for her client. The implication is that regardless of ones’ knowledge of a person’s capable wishes, ability to instruct, or fiduciary duty it is not in one’s personal interest to try protect another’s rights and wishes if the courts are involved.