INFORMATION UPDATE:

The Office of the Public Guardian and Trustee has a duty to arrange legal representation for persons alleged to be incapable in proceedings under the Health Care Consent Act before the Consent and Capacity Board and in proceedings before the Superior Court of Justice under the Substitute Decisions Act, where so ordered by the Board or by the Court.  This bulletin explains this function of the Office of the Public Guardian and Trustee.

1. LEGAL REPRESENTATION:

Section 3 of the Substitute Decisions Act, S.O. 1992, c.30, as amended, states:

1. Counsel for person whose capacity is in issue – If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
1. the Court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
2. the person shall be deemed to have capacity to retain and instruct counsel.
2. Responsibility for legal fees – If legal representation is provided for a person in accordance with clause (1)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees.

Similarly, section 81 of the Health Care Consent Act, 1996, states:

1. Counsel for incapable person – If a person who is or may be incapable with respect to a treatment, admission to a care facility or a personal assistance service is a party to a proceeding before the Board and does not have legal representation,
   1. the Board may direct the Public Guardian and Trustee or the Children’s Lawyer to arrange for legal representation to be provided for the person; and
   2. the person shall be deemed to have capacity to retain and instruct counsel.
2. Responsibility for legal fees – If legal representation is provided for a person in accordance with clause (1)(a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees.

2. ISSUES

1. How will the Public Guardian and Trustee be notified that the Court or the Board has directed her to arrange legal representation?
2. How will the Public Guardian and Trustee actually arrange legal representation for the process?

3. PROCESS

A. Notification from the Court or the Board to the Public Guardian and Trustee

Upon directing the Public Guardian and Trustee to arrange legal representation for the person, the Board arranges for the Order to be sent immediately by facsimile transmission to the Public Guardian and Trustee as follows:

For Court Orders, counsel appearing on behalf of any of the parties are expected to notify the Office of the Public Guardian and Trustee as soon as possible and provide a copy of the Judge’s endorsement and/or the issued and entered order, to the same contact numbers noted above.

B. Public Guardian and Trustee's Procedure for Arranging Counsel

Upon receipt of the Order, the Office of the Public Guardian and Trustee will:

1. arrange for a lawyer by canvassing, in rotating order, a list of lawyers provided by Legal Aid Ontario to take the case, and  
2. send the Order and additional information to the lawyer and a copy to both the respective Area Director of Legal Aid Ontario and the Court or the respective Board that issued the Order.

Whenever possible, the materials shall be sent by facsimile transmission. Otherwise, notice of the Order will be given by telephone and followed by mail.

Location of Counsel

The Office of the Public Guardian and Trustee makes reasonable efforts to arrange counsel in the geographic area in which the hearing will convene. However, due to prior commitments or scheduling conflicts, counsel within the immediate area may not be available. The Office of the Public Guardian and Trustee will then look to counsel outside the area.

Legal Aid Certificates

Regarding payment of legal fees in the absence of a private retainer, the lawyer must assist his or her client to complete an application for a legal aid certificate and submit it to the Area Director of the Legal Aid Office indicated on the materials from the PGT in advance of the return date of the Court or Board proceeding wherever possible. Application forms may be obtained from the local Legal Aid Office.

A certificate will be issued for a financially eligible client.  If the client is not eligible for free assistance, the application may be refused or the client (or his/her substitute decision maker) may be asked to sign a payment agreement.  The lawyer will be asked to assist with signing the payment agreement and should notify the area office immediately if unable to arrange a signature.  If an application is refused, the lawyer should pursue a private retainer but should notify the area office immediately if those arrangements fail.  In the event that the lawyer attends the hearing and a payment agreement cannot be signed or a private retainer cannot be arranged, Legal Aid will provide certificate coverage.

Situations Where the Public Guardian and Trustee is Guardian of Property

If the Public Guardian and Trustee is the person’s Statutory Guardian of Property, the lawyer that has been arranged to represent the person by the Public Guardian and Trustee will be so notified and will be provided with the name and telephone number of the person’s Client Representative. Counsel should contact the Client Representative to discuss retainer arrangements.  In the event that a retainer cannot be arranged through the Client Representative, Legal Aid will provide certificate coverage.

C. When Counsel Cannot Attend

If the lawyer arranged for by the Public Guardian and Trustee is subsequently unable to attend at the proceeding referred to in the Order, the lawyer must immediately advise the assigned staff member at the Office of the Public Guardian and Trustee, so that alternative arrangements can be made.

D. Questions and Answers

1. What is the role of the Public Guardian and Trustee under section 3 of the Substitute Decisions Act, 1992 and section 81 of the Health Care Consent Act, 1996?

   The Public Guardian and Trustee’s role is limited to arranging a lawyer for the person, not representing the person or paying the lawyer’s fees. It is important to note under both Acts, the person is deemed to have the capacity to retain and instruct counsel.

2. What happens if the client fires the lawyer and is unrepresented again before the proceeding before the Court or the Board is completed?

   In such a case, the Court or the Board has the discretion under the Substitute Decisions Act, 1992, or the Health Care Consent Act, 1996, to direct the Public Guardian and Trustee to arrange legal representation for the person again. However, the Court or the Board is not obliged to make such a direction and may decide to continue the proceeding and adjudicate even if the person is unrepresented.

3. What is the role of the lawyer when the client will not or cannot give instructions?

   The lawyer should attempt to determine the client’s wishes and directions through third party sources such as medical practitioners, family members, caregivers and friends of the client. If the client’s wishes or directions in the past or at present have been expressed to others, then the evidence should be presented in Court or to the Board.

   The lawyer must not become a substitute-decision maker for the client in the litigation; that is, the lawyer cannot consent to the proposed action or treatment even if it appears to be in the best interests of the client. The lawyer must ensure that the evidentiary and procedural requirements are tested and met, even where no instructions, wishes or directions at all can be obtained from the client.

4. What happens if the lawyer discovers that the client has funds to pay legal fees but a financial assessment has already been submitted and a legal aid certificate has already been issued?

   The regulations of the Legal Aid Services Act, 1998 provide that where any circumstances come to the attention of the lawyer which indicate that the client failed to make full disclosure of his or her financial circumstances, and accordingly may not have been entitled to the certificate, or which indicate that the client may no longer be entitled to the certificate, the lawyer shall forthwith notify the Area Director.

   Where the certificate is terminated because the lawyer notifies the Area Director, the lawyer may enter into a retainer directly with the client or his or her substitute decision-maker. In such case, the client (or his or her substitute decision-maker) would be responsible for the payment of legal fees directly to the lawyer. In the event the lawyer is unable to enter into a retainer with the client or his or her substitute decision maker, the lawyer should contact the area director.  It is Legal Aid’s intention that lawyers who take these cases are to be paid by Legal Aid if reasonable efforts are made to arrange any other retainer.

5. Where can a lawyer get further information?

   Information about Legal Aid Ontario can be obtained from their website www.legalaid.on.ca, including access to panel standards and related information and forms. 

   Information about the Consent and Capacity Board can be obtained from their website at www.ccboard.on.ca

The Office of the Public Guardian and Trustee
Duty of the Public Guardian and Trustee to Arrange
Legal Representation
ISBN 978-1-4249-4101-8
Reprinted in 2009
Disponible en français