Client Capacity: Your Practical Guide – What Every Lawyer Should Know

On December 3, 2025, I had the pleasure of attending a program organized by the Ontario Bar Association entitled “Client Capacity: Your Practical Guide.” The program was moderated by Matthew Rendely of Loopstra Nixon LLP and featured a panel of excellent speakers including: Nima Hojjati of WEL Partners, Lisa Leinveer of Perez Procope Leinveer LLP and Hilary Van de Kamer of Robinsons Law.

The speakers provided practical advice and valuable insights into assessing capacity, spotting “red” flags, accommodating disability and navigating the legal steps if your client becomes incapable (or capacity is in question).

While every case will be different, the panel discussed certain specific things that every lawyer should keep in mind, if and when, a capacity issue arises for a client.

Capacity Basics

1. Any person who is 18 years of age or older is presumed to be capable.[1]
2. Capacity is time specific and task specific. That means that just because someone is incapable for the purpose of one task, does not mean that they are incapable for the purpose of another task. Moreover, it also means that just because someone is incapable today, does not mean that they were incapable a year ago.
3. Capacity is determined on factors of mixed fact and law by applying the evidence available to the applicable factors/criteria in respect of a specific decision or act.

Different Levels of Capacity

There are different tests applicable for specific decisions/acts. The panel discussed the following:

The capacity to marry and the capacity to divorce

• A person entering into a marriage contract must understand the nature of the marriage contract and the duties and responsibilities that flow from it. The capacity required to enter into a marriage contract is generally considered to be of a low threshold.
• A person wishing to separate or divorce must understand the context of the decision, know their options and appreciate the consequences of their choices.
• Whether the capacity required to marry versus the capacity to separate or divorce is the same is unclear.

The capacity to make a Will

In order to make a Will, the testator:

• Must appreciate the nature and effects of the Will;
• Must appreciate their assets and liabilities (though exact knowledge is not required);
• Must appreciate possible legal and moral claims that may be made against their estate (though this does not necessarily mean that the testator must provide for those individuals);
• Must not have any mental illness that might in some way influence the terms of the Will; and,
• Must have a “sound and disposing mind” and be “free and capable.”

When meeting with their client to make a Will, the solicitor:

• Must ask probing questions that demonstrate that the testator is thinking about the consequences of their decisions;
• Must be alert to “red” flags and factors that may point to a capacity issue;
• Must verify information and instructions from one meeting to the next;
• Must refuse to draft the Will in the case of a clear lack of capacity;
• Must prepare the Will where there is uncertainty surrounding capacity but document all issues and concerns thoroughly;
• Must consider whether a medical assessment is needed, in the event of concerns surrounding capacity (if there is ongoing litigation and a client’s capacity is in question, the panel brought up the option of a section 3 counsel under the SDA and an Order that can be made for a capacity assessment under section 79 of the SDA); and,
• Must document the matter thoroughly including taking detailed notes and records of all interactions with the testator, any medical assessments, reports and evaluations, other records and witness statements, if any).

The seminal cases addressing capacity to make a Will are: Banks v. Goodfellow L.R., [1870] C.C.S. NO. 69 and Hall v. Bennett Estate, 64 O.R. (3d) 191, 227 D.L.R. (4th) 263 (2003) ONCA.

The capacity to grant a power of attorney for property

In order to grant a power of attorney for property, the grantor:

• Must know what kind of property they have and the approximate value of that property;
• Must be aware of their obligations to their dependant(s);
• Must understand that the attorney will be able to do anything that the grantor can do, other than make a Will, subject to any restrictions in the power of attorney document;
• Must understand that the attorney is accountable for their dealings;
• Must understand that they can revoke the power of attorney, if capable;
• Must appreciate that unless the attorney manages the property prudently, the value of that property may decline; and,
• Must appreciate the possibility that the attorney could misuse their authority.[2]

A continuing power of attorney remains valid even if the grantor later becomes uncapable of giving one.[3]

The capacity to grant a power of attorney for personal care

In order to grant a power of attorney for personal care, the grantor:

• Must have the ability to understand whether the proposed attorney has a genuine concern for their welfare; and,
• Must appreciate that they may need to have the proposed attorney make decisions for them.[4]

A person is incapable of managing their personal care if they are unable to understand information that is relevant to making a decision concerning their health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of one.[5]

The capacity to instruct counsel

There is a rebuttable presumption that an adult client is capable of instructing counsel.

Capacity to instruct counsel involves the ability to understand the financial and legal issues at hand. According to Constantino v. Constantino, 2016 ONSC 7279, in order to have capacity to instruct counsel, a client:

• Must understand what they have asked the lawyer to do for them and why;
• Must be able to understand and process the information, advice, and options the lawyer presents; and,
• Must appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.[6]

Whether a client has the requisite capacity to instruct counsel is a delicate and complex determination and one that the lawyer has to make. In considering that, the panel pointed out several relevant factors:

• Whether the client knows and understands the minimum choice or decision required to be made;
• Whether the client appreciates the consequences and effects of their choices or decisions;
• Whether the client appreciates the nature of the proceeding involved;
• The client’s ability to choose and keep counsel (sometimes churning through several lawyers in a matter may be a “red” flag);
• The client’s ability to represent themselves;
• The client’s ability to distinguish between relevant and irrelevant issues; and,
• The client’s mistaken believes regarding the law or court proceedings.

The more complex the advice or the subject matter of the issue is, the greater the capacity the client must have to be able to instruct counsel.[7]

A client may be capable of instructing counsel with respect to some aspects of litigation but not others.

If a client becomes incapable, a litigation guardian may need to be appointed under Rule 7 of the Rules of Civil Procedure.

Capacity to consent to treatment

Whether a person is capable to consent to treatment is considered on a treatment-by-treatment basis.[8] That means that someone may be capable to consent to one type of treatment but not another type of treatment.

Capacity to consent to treatment is presumed.[9]

Best Practices for Assessing Client Capacity

The panel referred to Kimberly Whaley’s best practices when assessing a client’s capacity, which include:

• Considering:

1. Whether the client is well supported and whether they are more supported by some family member(s). If so, whether there is a relationship of dependency between the client and that person(s).
2. Whether there is conflict within the client’s family.
3. Whether the client made any gifts. If so, in what amount(s), to whom, and the timing of any such gifts.
4. Whether there were any recent changes in the client’s estate planning document(s) or corporate management? If so, what is the timing of these changes and the reason.
5. Whether different lawyers have been involved. If so, why the client has gone back and forth between lawyers.
6. Whether the substance of the transaction or litigation step the client is asking you to take appears rational.
7. Whether the client had any recent significant medical event(s).
8. Whether the client has any physical impairment of sight, hearing, mobility or other.
1. Whether any medical opinions have been provided as to whether the client has any cognitive impairment, vulnerability or dependency.
10. Whether the client is, in some way, susceptible to external influence.
11. Whether there are any communication issues or language barriers.

• Meeting with the client alone and asking probative open-ended questions (avoiding “yes/no” questions).
• Taking detailed notes.
• Considering declining the retainer where there remains a significant reason to believe that undue influence may be at play such that instructions cannot be obtained.
• Being mindful of the Rules of Professional Conduct, including but not limited to:

1. Rule 3.2-9: “When a client's ability to make decisions is impaired because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.”
2. Rule 3.7-1: “A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.”
3. Rule 5.1-1: “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.”

The panel also discussed accommodating clients in the following ways:

1. Differentiating between physical disabilities and communication impairments from disabilities that may impact the ability to instruct counsel.
2. Accommodating in communication.
3. Accommodating in physical space.
4. Considering and addressing language barriers (like bringing in an interpreter).
5. Considering the impact of trauma on client needs.

Involuntary Detention

The panel also discussed involuntary detention under the Mental Health Act, R.S.O. 1990, c. M.7:

• Involuntary transport to a hospital

1. Can be done by way of Form 1 (issued by a physician) or Form 2 (issued by justice of the peace upon receipt of information from a third party).
2. Can also be done by way of police apprehension powers under section 17 of the MHA.

• Involuntary detention at the hospital

1. Can be done by way of Form 3 (which allows for the detention of a patient in a psychiatric facility for up to 14 days under specific criteria) and Form 4 (which is used to continue the involuntary admission of a patient who still meets the criteria for such admission after the initial Form 3 expires).
2. This can be appealed to the Consent and Capacity Board.

Key Takeaways

The panel urged lawyers to consider the impact of their actions on their clients where issues of capacity arise, including:

1. The fact that if a capacity assessment is ordered and a client is found incapable, the repercussions for the client will be significant and lead to loss of autonomy.
2. These issues have to be addressed on a case-by-case basis as each client and matter is different and may require a different approach.
3. It is important to consider “best practices” in the context of the Rules of Professional Conduct to ensure that each matter is addresses appropriately and professionally, in the best interest of the client.

This program will be returning for a Part 2, on a date to be set, jointly presented by the OBA Civil Litigation and Elder Law Sections, to delve more deeply into capacity issues in the context of litigation.

Stay tuned!

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