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.

Lawyers Care about Long-Term Care

Lawyers Care about Long-Term Care

There has never been a time where a light has shone so brightly on long-term care homes (LTC), and it is not a pretty picture. The COVID-19 pandemic has exposed the system’s struggle to meet the most essential needs of residents. At a time where the situation is going from desperate to dire, the Ontario Bar Association’s Elder Law Section has established a COVID-19 Working Group (Working Group) to closely examine the important legal issues facing vulnerable older Ontarians through the pandemic.

As one of the newest additions to the OBA, the Elder Law section was established in 2017 with a goal of furthering the interests of older adults and the legal practitioners who serve them. With a particular focus on the situation in LTC, the objectives of the Working Group include advocating for improvements to laws and regulations impacting LTC to better protect their vulnerable populations. It is time to better this system.

It is widely recognized that there are issues with regulation, supervision and accountability which directly impact the well-being of residents in LTC. These issues, while not new, have been thrust into the spotlight by the pandemic. Lawyers practising in the emerging field of elder law have a critical role to play by sharing the frontline experience of the bar and assisting government in identifying practical and useful legislative and regulatory reform to respond to the impacts of the pandemic on the older population, particularly those in LTC.

In July, the Elder Law section delivered a letter to the minister of long-term care and minister of seniors and accessibility, advocating for immediate implementation of the following recommendations:

  1. Ensuring compliance with the Residents’ Bill of Rights;
  2. Resuming unannounced annual Resident Quality Inspectors in all LTCs;
  3. Safeguarding residents’ right to give informed consent or refusal to treatment and the delivery of personal assistance services;
  4. Accelerating the completion of the LTC rebuild program; and
  5. Ensuring sufficient life safety measures are installed in LTCs.

We are looking forward to hosting a panel discussion on Dec. 9, 2020, on Safety in Long-Term Care: Making Sense of the Gillese Report and Government Response, and welcoming Ontario Justice Eileen Gillese herself as one of our presenters. Our work on a submission to the Long-Term Care COVID-19 Commission (the commission) also continues.

The issues plaguing LTC are wide-ranging and include:

  • There is evidence of overcrowding, understaffing, shortage of personal protective equipment (PPEs), outdated facilities, poor regulation and lack of job security and funding provided by the provincial and federal government in LTC.
  • The challenge with the upsurge of COVID-19 cases is that Canada and the Ministry of Long-Term Care for Ontario do not have consistent standards or policies in place for nursing homes.
  • While health-care providers have an obligation to care for their patients, they are unable to do so due to untimely interventions, minimal guidance and poor procedures.

The commission’s first interim recommendations, released on Oct. 23, 2020, are aimed primarily at increasing staffing, strengthening health-care sector relationship and collaboration and improving infection prevention and control measures.

As the second wave of COVID-19 continues to surge in Ontario, we must pull together to do the work that needs to be done to protect our vulnerable senior population. This is an issue that impacts many Ontarians today, and it will affect many more people in the future. The OBA’s Elder Law COVID-19 Working Group will continue to advocate for the legal changes necessary to achieve this goal. For more information, visit oba.org/sections/elder-law.