Periodically I am appointed by the Superior Court (or the Ontario Public Guardian and Trustee) to act for the interests of an incapable person, who needs representation and support.
Often this arises in disputes among family members over the incapable person’s power of attorney for either property or personal care, or both.
This is a very special role. I am statutorily charged to only represent the views and preferences of the incapable person, which regularly do not align with family members, in whole or in part.
This role is called “section 3 counsel”.
Recently Ontario’s Court of Appeal ruled on a case in which I acted as section 3 counsel.
The trial involved a dispute about the validity of my incapable client’s powers of attorneys. The family was entirely divided. One side challenged my position and argued the Court has no authority or ability to take into consideration my submissions and position, often done orally at the hearing, regarding the incapable person’s wishes and preferences.
Fortunately, the Court of Appeal disagreed, holding [at paragraph 8]:
“In the same way, it was reasonable for the application judge to refer to the statements of Jason Ward, section 3 counsel appointed by the Public Guardian and Trustee to represent Mrs. Lewis’ interests on the guardianship application, concerning Mrs. Lewis’ expressed wishes.”
This case offers very significant new judicial guidance to the role of section 3 counsel for advocating on behalf of incapable people who are deemed to have capacity to instruct a lawyer.
The Case:
Lewis v. Lewis, 2019 ONCA 690
