November 11, 2022

If an individual whose capacity is in issue in proceedings under the Substitute Decisions Act (“SDA”) does not have counsel,  the court may direct the Public Guardian and Trustee (“PGT”) to arrange legal representation for that person. Pursuant to section 3 of the SDA,  the alleged incapable person is deemed to have capacity to retain and instruct counsel.

The PGT will recommend the appointment of section 3 counsel where the alleged incapable person is unrepresented and it is necessary or helpful for the person’s views, preferences, and wishes to be directly before the court.

Section 3 counsel acts on their client’s instructions, even if those instructions may not in their client’s best interests. Section 3 counsel is not a substitute decision-maker.

Section 3 counsel’s actions must remain consistent with their client’s wishes. They must communicate their client’s wishes and preferences to the court, even if they disagree with those wishes.

Additionally, section 3 counsel’s role is to advise their client of their rights in the proceedings and to take steps to ensure that the legal, procedural and evidentiary requirements are met.

The PGT does not instruct section 3 counsel.  The PGT does not provide advice to section 3 counsel and may even be in a position of conflict with section 3 counsel.

The role of section 3 counsel continues to evolve.

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