Paper explains role of counsel in capacity proceedings

November 13, 2009 - Toronto  - Marshall Swadron spoke today at the Law Society of Upper Canada's 12th Annual Estates and Trusts Summit chaired by Archie Rabinowitz of Fraser Milner Casgrain LLP and Felice Kirsh of Schnurr, Kirsh, Schnurr, Oelbaum and Tator LLP. Swadron's talk coincided with the release of a paper addressing the role of lawyers appointed to represent persons whose capacity is at issue in proceedings under the Substitute Decisions Act, 1992 and the Health Care Consent Act, 1996.

Swadron polled the audience of about 300 lawyers present at the Donald Lamont Lecture Hall at Osgoode Hall in Toronto or who accessed the program by webcast and found that about half of them believed that the role of the lawyer appointed to represent the allegedly incapable client was to act in accordance with the client's best interests. The author then explained that this is a common misconception but that based on the statutes, the Rules of Professional Conduct and case law on the subject, counsel was bound instead to act solely in accordance with the client's instructions if they could be obtained.

To read the paper, please click here.