♫ I ain’t gonna do you wrong while you’re gone
Ain’t gonna do you wrong ’cause I don’t wanna
All I’m askin’
Is for a little respect…♫
How can you fully advise the client who may have diminished capacity or who may be someone with differing abilities? There are many aspects to this issue, such as advising the client who may:
- Have a diminished mental capacity due to age, disease, injury, psychological or other condition which may change or vary from day to day or perhaps during the day, such as being better in the mornings than they are in the afternoons;
- Have different physical abilities, such as being confined to a wheelchair or be unable to read, hear or move in one or more ways;
- Be under a legal disability (such as a minor);
- Be dependent on the physical or mental support or guidance of another (whether or not there is in place a power of attorney or other legal document authorizing such support);
- Be in a situation where they are facing a quickly declining physical and/or mental capacity;
- Be someone who does not speak, read or understand English;
- Be someone from a different culture with different cultural norms and experience with a different legal system;
- May have the ability to only be able to focus for a short while or only comprehend issues when they are expressed in their simplest terms;
A lawyer presupposes that they are dealing with a fully competent individual who has the full mental and physical capabilities to comprehend her or her legal affairs, who can appreciate the reasonably foreseeable consequences of their decision or lack of a decision, who can fully comprehend what is communicated to them and who can provide instructions to the lawyer sufficient to allow the lawyer to act in their best interests. Where these assumptions are placed in jeopardy, the lawyer has to assess if he or she is in a position where they are incapable of getting instructions from the client or entering into binding legal relationships.
There is much that can be done for someone under a physical disability. Your office can be designed to be accessible with an elevator, disabled parking, accessible washrooms and have accessible private meeting spaces where the client can use any aids that may assist in their reading, listening or comprehending your instructions with dignity.
For those clients who do not identify within the binary male-or-female system, then consider increasing gender-inclusive terminology and gender-neutral facilities. Fill-in forms can use terminology such as “Male”, “Female” and “Other”. Clients can be given the space to choose their own pronouns. Steps such as these would go a long way towards creating an inclusive environment to a community struggling for acceptance and provide them with the assurance they need to seek legal advice.
When it comes to a possible mental capacity, the lawyer must determine if the client has sufficient capacity to properly instruct you as their lawyer. Capacity can vary with any number of factors from medication, to physical conditions that affect mental acuity, cognition issues relative to the time of day and the like. You may need to enlist the support of family members and/or the Public Guardian and Trustee to ensure that the interests of the client are protected (and that the client is not subject to undue influence).
Comprehension of our legal system as compared to other legal systems that the client may have experienced must be gauged on a case by case basis to ensure that your client fully understands the consequences of taking a decision or failing to do so under our legal system to ensure that they are not operating from a mistaken belief or misapprehension of how the law is applied in any particular situation.
Legal disabilities can be addressed by seeking litigation guardians, committees and the such to serve as people legally designated to make decisions on behalf of your client, always guarding against the possibility that this legal representative may not be always acting in good faith or with the best interests of the client in mind.
If your client is facing an anticipated quick decline in physical or mental capacity, then if you accept the retainer, you would wish to ensure that you could compete the retainer such that your client’s wishes are fully carried out prior to the loss of capacity.
If you have a client with a limited ability to comprehend or focus, then to as great a degree as possible you would want to simplify the issues while still being able to receive instructions that allow you to protect the interests of the client. Furthermore, you may be dealing with a client who is fearful that their costs would escalate due to the increased time they require to process information and make decisions.
Ask yourself: When it comes to advising the client who may have special needs and/or capabilities, as lawyers, to the greatest degree possible, are we able to give them what they are asking for, namely a little bit of inclusion and respect?
-Hat tip to my daughter Lauren, medical student, for collaborating with me on this column.
Cross-posted to tips.slaw.ca.