Law Times

Law Times • June 21, 2010 FOCUS Lawyers advised on handling clients with mental-health issues BY ROBERT TODD Law Times those struggles are even great- er when litigants suffer from mental-health issues. Lawyers may fight the urge E to ask for removal as counsel of record when a client proves ex- ceptionally difficult to manage. But that can only happen in the most extreme cases, which makes it essential for family law practitioners to understand how to handle a case involving a client or an opposing party suffering from mental-health issues. The Office of the Public Guardian and Trustee has a significant role to play when mental-health issues and fami- ly law litigation collide. Sidney Peters, counsel to the office, noted at a recent Law Society of Upper Canada seminar that the public guardian and trustee acts only on matters in which someone has no one else to turn to. She made clear, how- ever, that the office has no au- thority to determine whether an individual engaged in litiga- tion is mentally incapable. Many lawyers, said Peters, don't take the proper steps when dealing with a client or opposing party they suspect may fit that criteria, which can be unwise. Commentary attached to Rule 2.02, s. 6 of the LSUC's Rules of Professional Conduct compel lawyers with disabled clients unable to handle their own legal affairs to take steps to have a representative appoint- ed. A lawyer seeking removal from the record must also en- sure the client's legal interests continue to be pursued. The Rules of Civil Proce- dure and the Family Law Rules also compel lawyers to serve the public guardian and trustee with a motion for removal as solicitor of record if the client appears to be mentally inca- pable, Peters noted. In addition, the rules force lawyers to take action if an op- posing party appears mentally incapable and is self-represent- ed or unable to retain counsel. THE ONE AND ONLY Westlaw® Canada FamilySource® Only FamilySource® gives you all the case law and legislation you need plus exclusive one-of-a-kind practice-specific resources that help you provide effective solutions for your clients. FamilySource EXCLUSIVES Child Support and Spousal Support Quantums on Litigator In a matter of minutes, you'll see what a support claim is worth. You'll get ballpark figures right from the results screen and see everything itemized by award amount. Spousal Support Advisory Guidelines and Commentary Search Spousal Support Advisory Guidelines and get comprehensive results that include links to cases and authoritative commentary. For more information www.westlawcanada.com Call 1-866-609-5811 ach family law case pres- ents a plethora of chal- lenges for lawyers, but They also impose an ethical ob- ligation on lawyers in such cir- cumstances to ensure the party has proper representation. "If you don't, you risk that the litigation you are involved in could be jeopardized at a lat- er date," said Peters. "Certainly, the litigation could become a nullity if it becomes apparent illness the individual suffers from, she said. Lawyers suspect- ing someone is suffering from depression, for example, should try to meet with the client's physician as soon as possible. "The nature and type of de- pression may dictate whether or not it's going to have a sig- nificant impact on a family law matter at hand, said McGirr. Anita Szigeti of Hiltz Szigeti LLP noted it's also vital for law- yers to understand how an in- dividual is found "not capable" with respect to management of property. Under the Mental Health Act, an attending phy- sician must assess the capac- ity to manage property of any If you cannot represent these people competently and deal with the issues they present, you should not be taking on these retainers. You can't abandon them just because things don't go the way you expect. that a mentally incapable party did not have appropriate repre- sentation." But, as Paula McGirr of the Legal Aid Ontario family law office pointed out, it's often not enough to simply voice a concern that a party may have a mental-health issue. It's also critical to identify the type of proceeding," said McGirr. The lawyer should send a let- ter to the client's doctor advis- ing of the concerns. The letter may include details of the test for legal capacity; information on the symptoms the client has shown; a suggestion of what may have caused the symp- toms; and a synopsis of the legal person admitted to a psychi- atric facility as an in-patient. This requirement can only be waived if a guardian of the per- son's property has already been assigned or if a power of attor- ney is in place. The Mental Health Act doesn't set out the criteria for capacity to manage property, Szigeti noted, but the s. 6 test under the Substitute Decisions Act has been adopted. That section states: "A person is incapable of managing prop- erty if the person is not able to understand information that is relevant to making a decision in the management of his or her property or is not able to appre- ciate the reasonably foreseeable consequences of a decision or lack of decision." Meanwhile, McGirr empha- sizes the requirement for family law practitioners to stick with clients who prove difficult to manage due to mental-health issues. "If you cannot represent these people competently and deal with the issues they pres- ent, you should not be taking on these retainers," she said. "You can't abandon them just because things don't go the way you expect." 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• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law