When individuals would otherwise be unrepresented in proceedings that can significantly impact their decision-making ability, their interests, and their autonomy, the court may appoint legal counsel for such individuals pursuant to Section 3 of the Substitute Decisions Act, 1992, S.O. 1990, c. 30 (“SDA”).
In pertinent part, Section 3 of the SDA provides as follows:
(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act,
(a) the court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and
(b) the person shall be deemed to have capacity to retain and instruct counsel.
If the court orders the appointment of a legal representative for an individual pursuant to Section 3 of the SDA, the Office of the Public Guardian and Trustee (OPGT) is charged with the responsibility of arranging such counsel. The OPGT selects Section 3 counsel from a list of lawyers approved by Legal Aid. Section 3 counsel are not counsel for the OPGT. If legal representation is provided for a person pursuant to Section 3, and no certificate is issued under the Legal Aid Services Act in connection with the proceeding, the person is responsible for the legal fees.
The role of Section 3 counsel can be complicated because a Section 3 lawyer is required to convey the allegedly incapable person’s wishes, even if that position is different or contrary to the views of others.