Working with Vulnerable Persons

Legal Disability 

This information has been summarized with permission from - https://www.thomsonrogers.com/wp-content/uploads/2020/04/representing-vulnerable-and-incapable-clients.pdf via The Litigator.

· Persons will be “mentally incapable” under the Act if they fail to meet the “understand or appreciate” test: that is, they are not able to understand information relevant to making a decision concerning their property (which includes a legal claim), care or safety; OR, they are not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

· Legal disability has very real consequences for a client. It results in a near total loss of autonomy in the legal process. A client cannot pursue a legal claim except by and through a Litigation Guardian.

· A Litigation Guardian is empowered to do “anything” required or authorized to be done by a party to litigation and who alone “instruct[s] the lawyer in the conduct of the [legal] proceeding”

Determining Mental Capacity 

· The starting point is the legal presumption that a person has capacity until proven otherwise.

· Capacity is demonstrated by the ability to“understand” and “appreciate.” To meet the test for capacity to instruct counsel, persons must: (1) understand what they have asked the lawyer to do for them and why; (2) be able to understand and process the information, advice and options the lawyer presents; and, (3) appreciate the advantages, drawbacks and potential consequences associated with the options with which they are presented (i.e. be able to assess risk).

· It is only when clients appear unable to understand information provided to them, or to appreciate the consequences of a decision, good or bad, does their capacity come into question.

· Incapacity must stem from a mental source such as mental illness, dementia, developmental delay or physical injury. It does not stem a lack of sophistication, education or cultural differences.

· The incapacity must affect the party’s decision-making in relation to the issues in the litigation.

· Lawyers can educate themselves about common mental disabilities and typical accommodations associated with such disabilities.

· Clients are ultimately the best resource in this regard – asking them what accommodations they need to understand, appreciate, and participate in the lawyer-client relationship is usually the best starting point.

· Lawyers are precluded from acting on behalf of an incapable client, they are necessarily under an obligation to assess their clients’ capacity to instruct counsel.

· While Rules of Professional Conduct impose an ethical duty on the lawyer to take steps to ensure that a legally disabled client’s interests are protected and not abandoned, they do little to provide any meaningful guidance about how a lawyer is supposed to determine a client’s capacity.

The Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers by the American Bar Association, recommends that the first step is to conduct a “preliminary screening” to identify any “red flags” suggesting possible incapacity. 

Accommodating Clients with Diminished Capacity

To promote accessibility and inclusion for individuals who have sustained a brain injury and struggle with cognitive impairment, Lawyers might consider one or more of the following during client meetings to provide adequate accessibility and accommodations to address symptoms of ABI. 

1. Provide advance explanation of the purpose of any meeting with the client.
2. Discuss one issue at a time.
3. Break information into small, manageable chunks.
4. Use simple, straightforward, non-legalese language.
5. Speak at a slower pace to allow the client to process information.
6. Allow extra time for clients to formulate and ask clarifying questions.
7. Provide cues to assist recall rather than expecting spontaneous retrieval of information.
8. Repeat, paraphrase, summarize, and check periodically for accuracy of communication and comprehension.
9. Confirm understanding by asking the client to explain in their own words what has been said.
10. If information is not understood, incompletely understood, or misunderstood, provide corrected feedback and check again for comprehension.
11. Provide summary notes and information sheets to facilitate later recall, including key points, decisions to be made, and documents to bring to the next meeting, etc.
12. Schedule appointments for times of the day when the client is at peak performance.
13. Schedule multiple, shorter appointments rather than one lengthy appointment.

During the Court Process

Having a holistic picture of your client and the factors that create vulnerability will promote inclusivity and accessibility for the client in court proceedings. The ability to anticipate the challenges that may arise due to the client’s disability or your needs as a legal professional in representing that client, will allow you to advocate for required accommodations. This will ensure your client has the ability to participate in the proceedings to the fullest extent of their capabilities. This will ensure that accessibility and equity is paramount in a system that is very complicated and difficult to understand for individuals with Acquired Brain Injury or cognitive impairment. It is important to help create a plan of accommodation to assist your client in navigating the challenges of the court process. Ask medical, mental health or support staff for guidance to ensure you are covering the clients needs in physical, cognitive and emotional support needs.

For consideration in Creating a Court Support Plan:

1. How will the proceedings affect my client's emotional energy?
2. Will the client’s brain injury create challenges in communication, understanding and ability to answer questions or produce an accurate timeline of events?
3. Can proceedings be scheduled during the time of day that is best suited to my client’s needs?
4. What type of behaviours could be disruptive due to the individual's cognitive impairment/ABI? What ways can I help to support or address this?
5. Will the client have access to a sensory item to decrease anxiety?
6. Is the client able to have a communication advocate? - Communication Disabilities Access Canada (CDAC) has a database of professionals who can provide assistance to individuals who need communication support due to issues such as brain injury. They can also provide more information, HERE.
7. Will the client be able to understand their rights and responsibilities during the proceedings?
8. Are there physical barriers that require adaptive assistance or support?
9. Will diagrams or pictures be helpful in explaining the proceedings?
10. Will the client be able to use sunglasses or glasses to reduce light sensitivity?
11. Can I access any of these resources to provide support to my client?