Representing clients with diminished capacity

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Clients either lacking legal capacity (the inability to understand or appreciate the reasonably foreseeable consequences of a particular decision) or dealing with diminished mental capacity present a unique set of challenges to personal injury lawyers. As highly vulnerable people, it’s crucial that these clients are afforded the full ability to exercise their legal rights. While providing that service can be more challenging, one leading lawyer says he and his colleagues have a range of tools and strategies they can use to make sure these clients are well represented.

Robert Ben, partner at Thomson Rogers Lawyers, explained that lawyers need to take a client-centred approach when dealing with someone who has diminished mental capacity or lacks legal capacity. He says that the Accessibility for Ontarians with Disabilities Act, the Human Rights Code, and the rules of professional conduct oblige lawyers to provide accommodations and special consideration to these clients.

“Lawyers are no different than any other service provider, they should provide service with regard to the dignity and independence of persons with disabilities, to make sure that they have an opportunity to use your services in a way that's equal to others,” Ben says. “In a retail store, you might think of a simple example like making the steps into your store accessible with a wheelchair ramp. In a law practice you've got to provide alternative means or accommodate the way you deliver legal services.”

Ben says that might mean allowing the client to sit with a support person during meetings that would otherwise be privileged, which the courts have recognized does not automatically result in a waiver of privilege. He says, as well, that could involve breaking information into more manageable chunks for a client, providing the client with written summaries of what was discussed, and using non-legal language as much as possible. He suggests speaking at a slower pace, repeating, paraphrasing, summarizing, and confirming what’s been covered in the meeting. As well, lawyers need to pay close attention to their clients and be able to distinguish between true lack of legal capacity and merely diminished mental capacity.

Diminished capacity can happen situationally. “I can think of clients who have had some preexisting issues with mental health, anxiety, depression, but were generally managing and coping well and their day to day life,” Ben says. “But after they get a very serious injury that sets them back and they're unable to work financially, they start to struggle, they can't pay their bills, that causes increased anxiety, increased depression, and it reinforces itself and creates a spiral.

Diminished capacity does not always, however, mean a client lacks legal capacity. “There may be times where they appear unable to absorb information and process information and un able to make decisions about legal matters that they're involved in, because they're having a bad day. And there may be other times where they appear fully capable of doing all of those things. The challenge for lawyers is how do you distinguish between someone who truly lacks capacity or merely may have some disability, temporary or otherwise, that merely requires accommodation or a different way of delivering legal services?”

Lacking legal capacity has serious ramifications for the client. It can result in a loss of autonomy in the legal process.  A substitute decision maker, such as a litigation guardian, becomes necessary. Distinguishing between diminished capacity therefore requires careful attention and deep empathy on the part of personal injury lawyers. Those soft skills, Ben says, are crucial to any personal injury lawyer’s practice as they advocate for the injured and vulnerable. When taking on clients with diminished capacity lawyers need to dial them up even further.

Crucial to that empathy is time spent with the client. The better a lawyer understands their client, their moods, their emotional triggers, their sources of stress, the better they can advocate for them and accommodate their particular disability. Ben says it’s key, as well, to treat each client as an individual with an individual set of challenges. Taking a cookie cutter approach can’t work because the client will see through the assumptions their lawyer is making.

Ben notes, too, that when evaluating a client’s capacity, it is irrelevant whether or not a particular dicsion is in what the lawyer would consider in the client’s best interest. Capable people have the right to take risks and to make what other s might consider bad decisions. It is only after a person is found incapable that the law concerns itself with protecting their best interests through a substitute decision maker. Ben says its important to remember that when serving clients like these.

Overall, Ben says that sensitivity is key to any lawyer’s work with these clients.

“You've got to be sensitive to the individual needs of your client, you've got to be sensitive to their personality style, you've got to be sensitive to the type of language that they respond to,” Ben says. “I think it really starts with one thing, which is when you're dealing with people with disabilities or impairments and you recognize that you have a duty to accommodate them, who better to ask than them? Ask them what accommodations they need.”