Arranging Legal Representation under Section 3 of the Substitute Decisions Act, 1992

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 before the Superior Court of Justice under the Substitute Decisions Act, 1992 where so ordered by the Court. This bulletin explains this function of the Office of the Public Guardian and Trustee.

Legal Aid Ontario has a duty to arrange legal representation for persons alleged to be incapable in proceedings under the Health Care Consent Act, 1996 before the Consent and Capacity Board where so ordered by the Board. Information about Legal Aid Ontario can be obtained from their website. Their address is set out at the end of this document.

  1. LEGAL REPRESENTATION:

    Section 3 of the Substitute Decisions Act 1992, 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.
    3. Nothing in this section affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,
      1. the person’s guardian of property; or
      2. the person’s attorney under a continuing power of attorney for property.

    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, managing property, 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 Legal Aid Ontario 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.
    3. Nothing in this section affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,
      1. the person’s guardian of property appointed under the Substitute Decisions Act, 1992; or
      2. the person’s attorney under a continuing power of attorney for property given under the Substitute Decisions Act, 1992.
  1. PROCESS
    1. Notification to the Public Guardian and Trustee

      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:

      Office of the Public Guardian and Trustee
      Suite 800, 595 Bay Street
      Toronto, Ontario M5G 2M6
      Attention: Legal Services Branch
      RE: Arranging Legal Representation


      Telephone: 416-314-1717
      TTY: 416-314-2687
      Facsimile: 416-314-2695

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

      Upon receipt of an Order made under section 3 of the Substitute Decisions Act, 1992, the Office of the Public Guardian and Trustee will arrange for a lawyer, send the Order and additional information to the lawyer and confirm that steps have been taken to notify other counsel of record or parties who have appeared in person in the proceeding and the respective Area Director of Legal Aid Ontario.
      Whenever possible, the materials shall be sent by facsimile transmission or electronically. Otherwise, notice of the Order will be given by telephone and followed by mail.

      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 proceeding wherever possible. Application forms may be obtained from the local Legal Aid Office.

      Usually, 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.

      Situations Where the Public Guardian and Trustee is Guardian of Property

      If the Public Guardian and Trustee is the person’s 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.

    3. Questions and Answers
      1. What is the role of the Public Guardian and Trustee under section 3 of the Substitute Decisions Act, 1992

        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 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 Court proceeding is completed?

        In such a case, the Court has the discretion under the Substitute Decisions Act, 1992 to direct the Public Guardian and Trustee to arrange legal representation for the person again. However, the Court 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?

        Representing a client pursuant to an Order made under section 3 of the Substitute Decisions Act, 1992 can be a particularly challenging role.  The lawyer may wish to consider his/her obligations as set out in the Rules of Professional Conduct and the Commentaries to the Rules.  The lawyer may wish to review case law, scholarly works and continuing education materials touching upon the subject of legal representation in this context and capacity law issues generally.

        The lawyer should attempt to determine the client’s instructions and wishes directly from the client wherever possible. In some situations, the lawyer may 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 consideration should be given to presenting the evidence in Court.

        The lawyer must not become a substitute-decision maker for the client in the litigation; that is, the lawyer cannot act as litigation guardian to make decisions in the proceeding even if it appears to be in the best interests of the client. Depending on the circumstances, the lawyer should consider testing whether the evidentiary and procedural requirements are met, even where no instructions, wishes or directions at all can be obtained from the client. However, the lawyer’s actions cannot override a client’s express wishes especially in light of the presumption of capacity to retain and instruct counsel.
      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. 
      5. Some helpful references:

        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. 

        Legal Aid Ontario
        Provincial Office

        Atrium on Bay
        40 Dundas Street West
        Suite 200
        Toronto, ON
        M5G 2H1
        Telephone:
        Toronto: (416) 979-1446
        Toll free: 1-800-668-8258
        Fax: (416) 979-8669
        TTY*:
        Local: (416) 598-8867
        Toll free: 1-866-641-8867
        (* Telephone device for the deaf)

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

        Information about the Public Guardian and Trustee can be obtained at www.attorneygeneral.jus.gov.on.ca/english/family/pgt/.

The Office of the Public Guardian and Trustee
Duty of the Public Guardian and Trustee to Arrange
Legal Representation
Reprinted in 2011
Disponible en français