Capacity to Instruct Counsel

By Seva Batkin & Valerie Dixon

Published in The Advocate, January 2011

There are a number of areas of practice where questions of capacity to instruct counsel arise and often perplex lawyers. The issue is obviously one at the forefront of at least some people’s minds: in a recent paper on pro bono practice, the authors dedicated an entire chapter to this question.

Estate litigators may be faced with these concerns more often than lawyers practising in other areas. However, given that such a large proportion of our population is approaching retirement age, there would seem to be little doubt that all lawyers will encounter this issue more frequently as time goes on.

This article examines the question of capacity to instruct counsel in the following situations:

1. committeeships—opposition by a proposed patient to either a declaration of incapacity or the appointment of a particular committee;
2. litigation generally—retainer to bring or defend an action when counsel has doubts as to the client’s capacity; and
3. doubt as to capacity arising mid-retainer.

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