Elder Law: Representation for those who are Incapable

Elder Law: Representation for those who are Incapable

This article is written to discuss a topic that will be highlighted at Elder Law Day on March 28, 2023, in person at the Ontario Bar Association between 2-5 p.m. (To learn more about Elder Law Day, click here.)

In matters under the Substitute Decisions Act (SDA), there are three distinct roles usually involved in protecting the legal rights of persons mentally incapable of making financial and personal care decisions for themselves. These roles are section 3 counsel, litigation guardian and the public guardian and trustee (the PGT). These are three distinct but important roles that exist for the protection of the interests of mentally incapable persons.

Litigation Guardian

 When a party is mentally incapable of instructing counsel, is a minor or is an absentee, Rule 7 of the Rules of Civil Procedure provides that an action can be commenced or defended on behalf of a person with a disability by a litigation guardian. A person already acting as a guardian to a mentally incapable person or an attorney under a power of attorney can be designated as the litigation guardian. If there is no previous guardian or attorney, then anyone can be appointed to be the litigation guardian. The litigation guardian must have a lawyer represent them in proceedings, and they must provide the necessary instructions to the lawyer. The litigation guardian must be mindful of the Rules of Civil Procedure, particularly the substance of their affidavit per Rule 7.02(2). They must have been informed of their potential liability for costs (per r. 7.02(2) (b) and (h).

Section 3 Counsel

On the other hand, s. 3 of the SDA allows a court to direct the PGT to arrange for a counsel to represent individuals alleged to be mentally  incapable in guardianship and power of attorney litigation in Ontario. The section 3 counsel represents, advises and acts on the instructions of the client. A section 3 counsel has the same relationship with his client as any solicitor-client relationship a lawyer ordinarily has. Check out our article on the functions and responsibilities of a section 3 counsel.

Public Guardian and Trustee

 Finally, the PGT is the province’s means of ensuring the protection of persons under disability such as minors and those without mental capacity. The PGT is, among many other duties, responsible for making financial decisions for adults who have been found mentally incapable and provides other services to protect the financial, legal and personal care of mentally incapable people of Ontario. The PGT can appoint section 3 counsel in respect of proceedings under the SDA, upon a court order and can be appointed as a litigation guardian for a mentally incapable person.

It is important to point out that while these representatives can be present at the same time, they are exercising different responsibilities on behalf of an incapable person.

Section 3 vs. litigation guardian

 Section 3 counsel cannot make assumptions or act independently of the instructions of the client. Therefore, if a client is unable to give instructions, the section 3 counsel cannot determine the client’s wishes and cannot make decisions for the client. The PGT monitors the conduct of matters to protect the mentally incapable person but does not direct or instruct the section 3 counsel.

A section 3 counsel is appointed by the PGT pursuant to an order or directions from the court while the litigation guardian is appointed by the court upon an application when it is necessary.

Additionally, the PGT can act as a litigation guardian as a last resort for mentally incapable adults but cannot be made the section 3 counsel.

A litigation guardian becomes the decision maker of the mentally incapable person in terms of the litigation and has no limitations on how to proceed. This means that anything a party is required to do or authorized to do can be done by the litigation guardian who is diligently carrying out these responsibilities in the best interests of the mentally incapable person.


Ultimately, all three representatives act in different roles and capacity, but they all are expected to act in the best interest of an incapable person. These roles function to protect the interests of vulnerable people, and it is important to emphasize the need for persons who will work constructively to assist the mentally incapable persons as the appropriate persons to fulfil these roles.

Overprotected: Section 3 Counsel & Britney Spears

Overprotected: Section 3 Counsel & Britney Spears

On July 14, 2021, Britney Spears was granted the right to hire her own lawyer to free herself from her conservatorship. The Ontario equivalent is a “‘guardianship” not “conservatorship”. You can read more about the differences between a guardianship and conservatorship here.

Previously, Spears had a court appointed lawyer, Samuel D. Ingham III. We do things differently in Ontario, but you could say that Britney’s court appointed lawyer is similar to what we have here called “section 3 counsel” per the Substitute Decisions Act (SDA) 1992, S.O. 1992, c.30 (s.3).

What is section 3 counsel?

 Section 3 of the SDA as amended, states:

Counsel for person whose capacity is in issue

3(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,

  • the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
  • the person shall be deemed to have capacity to retain and instruct 1992, c.30, s.3(1).

Responsibility for legal fees

  • If legal representation is provided for a person in accordance with clause (l)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal 1992, c. 30, s. 3( 2); 1998, c.26, s.108.


  • Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,
  • the person’s guardian of property; or
  • the person’s attorney under a continuing power of attorney for property. 2009, c. 33, 2, s. 71(1).

Section 3 of the SDA states that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding.

What are the duties of s. 3 counsel?

 The leading case of Sylvester v. Britton 2018 ONSC 6620 lists the duties of section 3 counsel:

  1. Seek instructions from [the individual] and act on those instructions;
  2. Keep confidential all communications with [the individual] and all information that he/she obtains from the individual or on the individual’s behalf;
  3. Diligently and ethically advance [the individual’s] interests in accordance with her instructions;
  4. Ensure that legal, procedural and evidentiary requirements are tested;
  5. Make [the individual’s] position or wishes known to the court; and
  6. If [the individual] lacks capacity to provide instructions at any point in the litigation, promptly take steps for the appointment of a litigation

Section 3 counsel is still required to follow Spears’ instructions, advocate on her behalf and determine if the client has the capacity to provide instructions – this is essentially the role of counsel.

Spears’ prerogative to counsel

 Spears’ fundamental right to choose her lawyer has now been restored. In Ontario, this would mean that her lawyer has been satisfied that Spears has capacity to instruct him or her and she does not require to continue to be deemed to have the capacity for the purposes of instructing counsel. This supports her case as it illustrates that she has the capacity, and a guardianship/conservatorship is not required.

For someone who has had all her decision making and financial freedom taken away, having the chance to make a major life altering decision in choosing her advocate is a matter of significance.

Legal fees

 Despite s. 3 counsel being court directed, the legal fees of s. 3 counsel would still be borne by Spears (in this hypothetical) . From section 3(2)  of the  SDA, appointed  counsel  would  be permitted  to reimburse themselves from Spears’ funds for the  work  on her file. If  the legislation is similar to Ontario, Spears is still responsible for her court appointed lawyer’s fees.

Overall, Spears being able to choose her own lawyer may be indicative that she has the capacity to instruct counsel and doesn’t need to be deemed to be able to do this by the courts. With the free Britney movement, it is a hopeful step for Spears to be rid of what she would say is a “toxic” relationship with her father.