Accounting for Law

Follow your instinct when it comes to assessing capacity

Elderly clients often have specific needs that merit special consideration, and in these cases, it is essential to ensure the client is capable of giving and receiving instructions, Toronto family lawyer Herschel Fogelman recently told participants of a Law Society of Upper Canada program.

Principal with Fogelman Law, Fogelman shared his thoughts on the topic as part of the Family Law and the Elderly Client program.

“You have to make sure the person you are interviewing is able to give you instructions, understand the nature of what he or she is coming into the office for and that there are no third-party considerations being advanced,” Fogelman tells

It’s a concern that often arises, he says, as third parties, like children or spouses, may feel they know what’s best for their family member.

“I think these are issues that are going to be more and more prevalent because we have an aging population,” says Fogelman. “From the lawyers' end, it’s incumbent upon us to make sure the client is capable of giving instructions and understanding the nature of the retainer.”

In assessing capacity, Fogelman says common sense comes into play.  

“It’s all part of the process. To be a good lawyer, you have to know what you know and what you don’t know,” he says. “If you’re not sure, and if there’s something that doesn’t sound right, then investigate it. Lawyers are not specifically trained to determine capacity. The issue is satisfying yourself that your client has the necessary capacity to give instructions.

“If you have concerns because you’re not getting answers that sound right to the questions you’re asking or the person can’t follow a train of dialogue, you first have to ask yourself whether this person has the necessary capacity to retain counsel,” he says. "When in doubt refer the person for a capacity assessment. If they are reluctant to do so, you should decline the retainer.

“As a lawyer, you want to make sure you're not exposing yourself to professional liability. If there are alarm bells going off in your head, you have to satisfy them. You can’t take instructions from someone who doesn’t have the capacity to give instructions.”

When it comes to third-party involvement, Fogelman says a family member’s intention may not be in the client’s best interest, and lawyers must watch for that as well.

“There may be some other person who has his or her own agenda, that they may try to advance through the client,” he says, noting a classic example is a child suggesting a parent wants to change their will to leave them their entire estate.

“You’d go through all the normal steps and discussions but if you have concern in that initial meeting that the individual doesn’t really understand what’s happening, we’ve got a problem,” says Fogelman. "Counsel need to be careful who is in the room with the client, especially if there are capacity concerns. Even if there no capacity concerns, having the third party in the room can create a variety of future problems, relating to privilege and hidden agendas," he says.

And even when a third party’s motivations may be for the best, due diligence and caution are important, he adds.

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