The Client with Questionable or Limited Capacity

Any time you take on a client, you must consider whether the client has the capacity to give you instructions, and you must remain aware of the capacity issue throughout the relationship. A client may be capable of making some decisions but not others. The key is whether the client is able to understand the relevant information and the reasonably foreseeable consequences of the decision: see Code of Conduct, Rule 3.2-15, Commentary [1]. Be sure to turn your mind to the issue of client capacity whenever you take on a new client. Familiarize yourself with Rule 3.2-15 of the Code and consider how your duty of confidentiality applies where you have a client who lacks capacity. See the Commentary to Rule 3.3-1 of the Code, particularly [10].

While a client may face mental health or impairment challenges, this does not necessarily mean the client will be unable to instruct counsel. However, it may mean the client may have difficulty understanding your advice or providing you with instructions. In these circumstances, it is important to provide all your advice in writing and ask the client for written instructions. If you cannot get written instructions, confirm the lack of instructions or verbal instructions in writing. Ultimately, if you cannot get instructions on which you can rely to proceed, you may need to withdraw or close the file, and inform the client in writing. 

Generally speaking, you cannot represent a client who lacks the capacity to give you instructions unless either you were appointed by a court or tribunal or by operation of statute, or the person is involved in a proceeding in which failure to act could result in imminent and irreparable harm: see Rule 3.2-15, Commentary [2] and [3]. You may, however, take on a client of marginal capacity if that client is competent to give you instructions on some, but not all, matters: see Rule 3.2-15, Commentary [1].

If a capacity issue arises during the retainer, you must maintain a normal client-lawyer relationship to the extent reasonably possible, but you may need to take steps to have a legal guardian appointed or to obtain assistance from the Public Trustee. In such circumstances, the lawyer should continue to act until the appointment occurs. The client should not be abandoned: see Rule 3.2-15, Commentary [3].

Remember that you and your staff will need a flexible approach if you find your clientele has an increased risk of facing capacity concerns. It can be worthwhile to invest in specific training for your staff that is pertinent to the clients with whom they are frequently in contact. At a minimum, ensure all communications with the client are well documented, and take steps to ensure your staff are equipped to manage the client relationship.

Remember that you are not a social worker. You are not trained or licensed to provide counselling or social supports. Familiarize yourself with the local community resources that are available to assist in this regard, particularly those that offer advocacy and court services. You may learn more by contacting services such as Alberta 211, which assists in connecting people with local community and social services.

Last modified: Wednesday, 16 August 2023, 2:25 PM