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Capacity to Enter into a Lawyer Retainer

Guardian Law Group v LS, 2021 ABQB 591*


In the case of Guardian Law Group v. LS,[1] the Honourable Mr. Justice C.M. Jones was tasked with answering a question of pure law: what are the requirements that must be met by counsel to be validly retained to represent an individual in the context of that individual’s own capacity hearing?

In Guardian, Jones J.’s decision provides the criteria or, novel test for voiding a retainer agreement for incapacity. Further, Jones J.’s comments not only help clarify the criteria/test, but, also provide guidance to lawyers in approaching capacity issues.


The facts of this case are uncontested. The older adult, (“RL”) retained Guardian Law to represent him at a capacity hearing. The matter settled, resulting in his daughter, (“LS”) becoming Guardian and Trustee.[2]

In 2013, RL signed an Enduring Power of Attorney (“EPOA”) in favour of LS, which would take effect upon medical declaration of his lack of capacity to manage finances. In November of 2015, his physician declared RL incapable. A second medical declaration was provided in March 2018.[3]

In May 2018, RL became unhappy with LS’ handling of his accounts and hired Guardian Law to represent him. Guardian Law retained a physician who concluded RL did have capacity to retain and instruct counsel and to manage financial affairs.[4]

In September 2018, Jones J. ordered an independent capacity assessment for RL in which a physician reported that RL lacked capacity. Guardian Law then retained a psychiatrist who reported that RL’s capacity was borderline, but that his issues could be mitigated with proper support.[5]

Out of concern for RL’s capacity, Jones J. ordered a litigation guardian be appointed pursuant to Rule 2.11 of the Alberta Rules of Court, Alta Reg, 124/2010 (the “Rules”).[6] On June 28, 2019, Guardian Law filed a “Brief of Argument for Costs,” claiming $92,789.00 in legal fees. LS opposed the application on the grounds that RL lacked the capacity to retain Guardian.

Although this case involved an application for costs, Jones J. held that the dispute fell squarely within the ambit of contract law.[7] Moreover, while Part 10 of the Rules deals with the independent review of retainer agreements and the ability of a review officer to make decisions on the reasonableness of fees. Jones J. held that a review officer does not interpret retainer agreements; that authority lies with the court alone.[8]

Jones J. grounded the disputed claim in contract because it was brought by a lawyer against a former client, the remedy sought was contractual damages from unpaid fees, and the Respondent denied the claim using a contractual defence: lack of capacity.[9]

The decision in Guardian reminds us that a retainer is a specific type of contract between a lawyer and their client for legal services. In the matter before the Court, Jones J., citing the British Columbia Court of Appeal decision in Abel,[10] ruled that the intervention of the Rules gives retainer agreements a “special character … that tempers the strict application of contract law with equitable considerations.”[11]

The Issue

The sole issue in this case, a question of pure law, asks what is required of counsel to be satisfied the client has the necessary capacity to enter a Retainer Agreement.

Capacity (Generally, in Contract, and the Capacity to enter Retainer Agreements)

Capacity Generally

The Guardian decision reminds us that determinations of capacity are fact specific; each person’s determination must be particular to their situation.[12] But also, determination is task-specific and can change over time, both arguably increasing and decreasing pursuant to each person’s circumstances.[13]

Since capacity is task-specific, the Court in Guardian, citing Carmichael v GlaxoSmithKline Inc.,[14] held that it does not follow from a finding of capacity or incapacity in one area that a person has or lacks capacity in any other area. The important thing to bear in mind is that a finding of capacity in a certain area does not lead to a finding of capacity with respect to all tasks within that area. To illustrate this, Jones. J. used the example where “a client may have capacity to instruct counsel in relation to one legal problem, but not another.”[15] The Court was careful to outline that the complexity of each specific task in question must be relative to the person’s cognitive ability.

In Guardian, Jones J. looked at the hierarchy of capacity in making specific types of decisions. Citing the Ontario decision of Calvert,[16] Jones J. noted that the capacity to instruct counsel tends to fall higher on this hierarchy since it involves the ability to understand financial and legal issues. Although Jones J. commented on the hierarchical approach, the Court also reflected on what was ruled recently in Sylvester,[17] mainly that a finding of capacity in a ‘higher’ area won’t necessarily lead to a finding of capacity in lower areas. In fact, the question of capacity is decision-specific and the appropriate criterion for determination is applied to determine requisite capacity. There is no real hierarchy, and the specific legal criteria is applied to each decision.

Capacity to Contract

There is a presumption that adults have the capacity to enter a contract. However, if a party lacks the requisite capacity, an otherwise valid contract can be defeated. In Guardian, Jones J. canvassed authority for whether a contract is voidable based on mental incapacity.

In Bank of Nova Scotia v Kelly,[18] the criteria/test was illustrated as follows:

  • At time of contract, the party seeking relief was incompetent;
  • By reason of such incompetence, that party was incapable of understanding the terms of the contract and forming a rational judgment of its effect upon his or her interests; and
  • The other party had actual or constructive knowledge of such incompetence.[19]

Jones J. in Guardian recognized that for a contract to be voided for incapacity, it must be unfair to the party lacking incapacity. Pursuant to the decision in RMK v NK,[20]Courts of equity will not interfere if a contract entered into with a mentally incompetent person is fair and was made in good faith, if the other party to the contract had no knowledge of his or her mental incapacity and did not take advantage of that person.”[21]

Capacity to Enter Retainer Agreements

Jones J. held that the capacity to enter a retainer agreement was very closely connected to the capacity to instruct counsel. In RMK, Goss J. adopted the criteria/test for the capacity to instruct counsel from the Ontario case of Costantino, which held that to meet the test for capacity to instruct legal counsel, a person must:

  • Understand what they have asked the lawyer to do for them, and why;
  • Be able to understand and process the information, advice, and options the lawyer presents; and,
  • Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with.[22]

Jones J. recognised distinct differences in the contractual nature between the capacity to instruct counsel and the capacity to enter into a retainer agreement, in that, capacity is only assessed at the time the contract is found, ie., when the retainer agreement is entered.

Guardian reiterated that a retainer may be validly entered into if the client had capacity at the time it was created, carefully noting that if the client’s capacity subsequently diminished over time, such that the lawyer could no longer accept instructions, the lawyer was under ethical obligations. That said, the retainer would not be voidable if it was signed at the time of capacity.[23]

Policy Considerations

The Applicants in Guardian argued that “[p]eople have a right to representation,”[24] and that individuals with questionable capacity are vulnerable to exploitation, however, Jones J. held that other policy considerations are equally important, such as ensuring participants in the justice system are free from undue influence and capable of making the required decisions.[25]

The Criteria / Novel Test for Voiding a Retainer Agreement

Jones J., adopting a particularization of the test for contractual capacity from Kelly, with elements specific to retainer agreements,[26] proposed the following criteria, or novel test for voiding a retainer agreement:

  • Did the client, at the time of entering into the retainer agreement, have the capacity to understand its terms and form a rational judgment of its effect on his or her interests?
  • Did the lawyer know that the client lacked capacity, and, more specifically,
    1. Were there sufficient indicia of incapacity known to the lawyer to establish a suspicion that the client lacked the requisite capacity?
    2. If yes, did the lawyer take sufficient steps to rebut a finding of actual or constructive knowledge of incapacity?[27]

Jones J. held that the sequence of the test (answering question 1 or 2 first) is not important since any order will work based on practical considerations.[28] What is important, is that it is up to the trier of fact to determine how to approach the order, based on the circumstances of each case.[29]

Analysis of the Criteria / Test 

Part 1: Did the client have capacity?

Jones. J notes that most definitions share two common concerns:

  • Does the person understand the relevant information, and,
  • Does the person appreciate how the relevant information will affect him or her?

The essence of the inquiry should include, “whether the person can understand and appreciate the consequences of the retainer agreement.”[30]

The ability to understand and appreciate relevant information is captured in Alberta’s definition of capacity found in the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2:

1(d) “capacity” means, in respect of the making of a decision  about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of

(i) a decision, and

(ii) a failure to make a decision;

Part 2 (a): Were there sufficient indicia of incapacity known to the lawyer to establish a suspicion that the client lacked the requisite capacity?  

Jones J. ruled that the emphasis rests in an analysis under the framework of the contract. In contract, parties have no duty to take positive steps, citing Chitty on Contracts at p. 876[31] – “absent information that alerts them to incapacity, they are entitled to rely on the presumption of capacity.”[32]

In Guardian, Jones J. endorsed a non-mandatory, non-exhaustive list mostly captured from RMK and Kozak Estate (Re)[33] which may be helpful to the analysis:

  • The retainer pertains to proceedings which concern the client’s capacity;
  • Whether the client appreciates the nature of the proceedings;
  • A past history of being unable to keep and choose counsel;
  • Psychological or documentary evidence of incapacity;
  • How the client presents when meeting counsel;
  • Inability to communicate objectives and priorities clearly;
  • A repeated focus on irrelevant issues or facts;
  • Mistaken beliefs regarding court procedures;
  • Reliance on another party to communicate with counsel; or,
  • Increasing isolation from friends and family.

Lists may illustrate some of the different kinds of indicators of capacity or incapacity, however, they are not authoritative. For this notable reason, the Court in Guardian held that the analysis must proceed on a case-by-case basis. The fact-specific nature of capacity means there could be many relevant factors to consider; no single factor will necessarily lead to a finding either way.

Jones J. also clarified that medical evidence does not necessarily outweigh a lawyer or layperson’s opinion regarding capacity holding that, “If suspicion cannot be made out, the inquiry ends, and the retainer agreement stands.”[34]

Part 2 (b): If yes, did the lawyer take sufficient steps to ascertain capacity so as to rebut a finding of actual or constructive knowledge of incapacity to contract

If suspicion is made out, Jones J. held that the focus shifts to the actions of the lawyer. There are two ways to prevent a suspicion of incapacity from rising to the level of actual or constructive knowledge: mitigate the client’s potential incapacity or make reasonable inquiries to confirm the client’s capacity.[35]

Jones J. held that “where further action is taken that confirms the client’s capacity, knowledge is rebutted,” and the Court provided five reasonable steps a lawyer could take including:

  • Obtaining consent from the client to speak with his or her family doctor or psychologist;
  • Obtaining consent from the client to request their medical records;
  • Reviewing any capacity assessments that have been performed;
  • Speaking with family, friends, or close contacts for their opinion on the client’s capacity; or
  • Requesting a capacity assessment.[36]

Whether these steps (or any other reasonable steps chosen) will be considered reasonable will be “determined with reference to the lawyer’s level of knowledge after they were completed.”[37] If the court is satisfied, a lawyer ought to have known, the efforts will be considered insufficient. If the court is satisfied the lawyer’s efforts led to a sufficient certainty the client had capacity, the inquiry ends, and the contract stands.

Where the lawyer’s efforts led to uncertainty or doubt regarding capacity, the court must ask whether the steps taken constituted “reasonable care and diligence” or whether a reasonable lawyer would have looked further. It is critically important that the trier of fact assess the reasonableness of any steps taken.

Finally, the decision in Guardian looked at whether equitable considerations exist. Jones J. relying on Waldock v. Bissett,[38] which held that:

In considering whether to cancel the contract for not being fair in its inception, the court, or now the registrar, may apply all the principles of equity which go to whether justice requires that a contract voidable for such things as breach of fiduciary duty or misrepresentation or duress should be rescinded even though it has been fully performed and, thus, restitutio in integrum in its strict sense is not possible.

*Blog by Kimberly Whaley and Student-at-Law, Brett Book

[1] 2021 ABQB 591 [“Guardian”]

[2] Guardian at para. 1

[3] Ibid at paras. 6-7

[4] Guardian, supra note 1 at paras. 8-9

[5] Ibid at paras. 10-11

[6] Ibid at para. 12

[7] Ibid at para. 19

[8] Ibid at para. 23

[9] Ibid at para. 27

[10] Abel v Burke, 2000 BCCA 284 at para 14 [“Abel”]

[11] Guardian, supra note 1 at para. 22

[12] Guardian, supra note 1 at paras. 33-34

[13] Ibid at paras. 34, 37

[14] Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal ref’d [2021] SCCA No. 409 (SCC)

[15] Guardian, supra at note 1 at para. 36

[16] Calvert (Litigation Guardian of) v. Calvert, 1997 CanLII 12096 (ON SC), [1997] 32 OR (3d) 281 (SC), aff’d 1998 CanLII 3001 (ON CA), [1998] 37 OR (3d) 221 (CA), leave to appeal ref’d [1998] SCCA No. 161 (SCC) [“Calvert”]

[17] Sylvester v. Britton, 2018 ONSC 6620 [“Sylvester”]

[18] Bank of Nova Scotia v. Kelly, 1973 CanLII 1289 (PE SCTD), [1973] 41 DLR (3d) 273 (PE SCTD) at para 10 [“Kelly”]

[19] Guardian, supra note 1 at para. 43

[20] RMK v NK, 2020 ABQB 328 [“RMK”]

[21] Guardian, supra note 1 at para. 44

[22] Costantino v. Costantino, 2016 ONSC 7279, at para 47 [“Costantino”]

[23] Guardian, supra note 1 at para. 48

[24] Ibid at para. 49

[25] Ibid at para. 53

[26] Ibid at para. 58

[27] Ibid at para. 57

[28] Ibid at para. 59

[29] Ibid at para. 63

[30] Ibid at para. 69

[31] Chitty on Contracts, (32nd ed, 2015), vol. 1, at p. 837 [“Chitty”]

[32] Guardian, supra note 1 at para. 70

[33] Kozak Estate (Re), 2018 ABQB 185 [“Kozak”]

[34] Guardian, supra note 1 at para. 76

[35] Ibid at para. 77

[36] Ibid at para. 82

[37] Ibid at para. 84

[38] 1992 CanLII 1002 (BC CA), [1992] 67 BCLR (2d) 389 (CA)


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