Here’s a little-known fact: Did you know that your lawyer has the frontline responsibility for assessing your legal capacity, and deciding whether you are mentally capable of managing your own affairs? And of deciding whether a Litigation Guardian should be appointed for you, even without a court order?
A recent Ontario court decision thoroughly canvasses this principle, and the tests involved.
The case concerned an 85-year-old woman named Carol Weir, who had been afflicted with dementia for a few years. After she suffered injuries in a 2017 car crash while riding with another woman named Catherine, the two of them sued the other driver for damages.
However that personal injury litigation had to be halted when it turned out Carol could not remember the accident’s details. Carol’s family doctor gave evidence that she did suffer cognitive impairment, and needed caregiver assistance for daily living tasks (such as financial management, transportation, housekeeping, and food preparation). But the evidence fell short of showing that Carol lacked legal capacity, or that she needed to have a Litigation Guardian appointed for her. Further medical opinion was greatly delayed, or inconclusive.
This led to a procedural bottleneck; the accident litigation was stalled for three years. Anxious that the case was going nowhere, and even without a Litigation Guardian in place, the lawyers for Carol and Catherine asked the court to approve a $100,000 settlement. It would see $60,000 going to Catherine, and $40,000 going to Carol.
The court agreed to sign off on this settlement, but explained it was doing so “not because of the exigencies of paying an elderly person her compensation, but rather because no litigation guardian … was ever required.”
The court reasoned that in Carol’s case, she might indeed lack memory of the accident, and might have impairments around daily tasks. But this did not mean she should be deprived of her autonomy to take advice from her lawyer and execute a settlement, especially if this was based on the “speculative belief that [her] inability to remember details of a car accident could be symptomatic of a mental condition depriving her of personal legal autonomy.” There was nothing to suggest Carol lacked the ability to understand a settlement of her claim.
With that said, the court took the opportunity to explain the apparently-confusing Ontario procedure and responsibility for appointing a Litigation Guardian.
Under the Rules of Civil Procedure, Rules 7.01 and 7.02 cover situations where a client’s lawyer (in this case, Carol’s lawyer) could appoint one for her without a court order. The Ontario courts rely on all lawyers, as officers of the court, to use their professional judgment to make this assessment respecting their own clients. This duty is embodied in the Law Society of Ontario’s Rules of Professional Conduct governing its member lawyers.
The following legal points are relevant:
- The primary responsibility falls with the client’s own lawyer, who is expected to make the assessment on a mandatory basis.
- The test for mental capacity is set under the Substitute Decisions Act, 1992, and pertains to “disability”.
- That concept refers to a person’s ability (1) to understand information relevant to deciding or (2) to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Applying this to Carol’s case, the court said:
Her dementia might mean she will forget the advice the next day. The lawyers can address this problem by memorializing instructions in writing. It is possible her condition might progress to the point that she cannot follow a conversation with her lawyers about the settlement of her accident claim. At that point, and only then, do subrule 7.01(1) of the court’s Rules and s. 3.2-9 of the LSO Rules combine to require appointment of a litigation guardian.
The court added there are different tests for different areas of life. As the court explained about Carol:
The inability to manage legal affairs is different from other cognitive functions, such as operating a hot stove or a car. Because legal autonomy relates to basic human rights, the ethical response to the discovery of a client’s cognitive impairment is to consider whether that human right should be taken away.
With this in mind, and unless someone could come forward an demonstrate otherwise, Carol’s rights were not to be transferred to a Litigation Guardian at this stage, with the court noting:
Until Ms. Weir can no longer take advice and instruct counsel, removing her legal autonomy to settle the lawsuit based on early symptoms of dementia would amount to a serious injustice.
For the full text of the decision, see:
Cormier v. Othen, 2024 ONSC 4237 (CanLII), <https://canlii.ca/t/k696b>
