Co-written by: Kim Gale and Jonathan Nimpar

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.

Conclusion

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.

This article was originally published by Law360 Canada part of LexisNexis Canada Inc.