The Law Society of Ontario’s (“LSO”) Guide to Navigating Client Capacity Concerns (last updated August 14, 2024) is instructive of the responsibility of lawyers and paralegals in Ontario to assess for capacity. As explained in the Guide available online:

When a lawyer or paralegal meets with a new or existing client they must consider whether the client has the capacity to provide legal instructions and enter into binding legal relationships. They must also consider whether the client is being pressured by a third party to proceed with the matter or provide instructions.

Evaluating a client’s capacity to provide instructions or manage their legal affairs is a complex multi-faceted inquiry. This is because a client with a disability, or whose ability to make decisions is or may be impaired, does not necessarily lack the legal capacity to provide instructions in all situations. For example, a client may have the capacity to make certain decisions but not others or may have the capacity to provide instructions one day and not the next.

While assessing capacity is a legal evaluation, not an ethical one, this Guide serves as a starting point for licensees dealing with clients whose capacity may be diminished. Specifically, it provides information on the following:

1. The Law Society’s requirements 
2. Understanding legal capacity
3. Recognizing duress and undue influence
4. Conducting capacity assessments
5. Addressing red flags
6. Recommended steps
7. Related resources
8. Practice area guidance

In short, the LSO guide explains that lawyers and paralegals are responsible for determining their clients’ decision-making capacity.  For example, the lawyer or paralegal is responsible for determining whether their client has:

• capacity to instruct counsel;
• capacity to make a will or codicil (“testamentary capacity”);
• capacity to make an inter vivos gift;
• capacity to contract;
• capacity to marry or divorce;
• capacity to sign or revoke powers of attorney; and
• capacity to activate a continuing power of attorney for property.

For vulnerable and elderly clients, assessing for capacity may require looking into the clients’ known medical information.  Most physicians in Ontario are unfamiliar with the legal requirements of common law decision-making tasks, and for that reason are unwilling to provide opinions concerning decision-making capacity.  However, the LSO Guide for Navigating Client Capacity Concerns references a number of resources, including the Capacity Clinic, which lawyers and paralegals may consult for additional information on determining legal capacity.