Working with Vulnerable Persons

Legal Professionals Representing Vulnerable Clients

In this section you will find information to consider in representing clients who have sustained a brain injury and as a result struggle with cognitive, emotional, and physical impairments. These individuals can experience symptoms which can diminish their ability to fully participate and understand the complexities of the criminal justice system. These individuals often experience co-occurring conditions such as mental health or addictions which further compound their vulnerability in unequal access and participation in complex court proceedings and criminal justice systems.

For Legal professionals to adequately represent their client’s interests it must be determined if a client meets the definition of a legal disability and that they have the competency to direct their counsel. Assessing an individual’s ability to comprehend and participate in the proceedings will determine the type of accommodations that are required to ensure a fair and equitable process. This also ensures that the client is able to adequately direct their legal counsel.

Legal Disability

This information has been summarized with permission from – https://www.thomsonrogers.com/wp-content/uploads/2020/04/representing-vulnerable-and-incapable-clients.pdf via The Litigator.

Persons will be “mentally incapable” under the Act if they fail to meet the “understand or appreciate” test: that is, they are not able to understand information relevant to making a decision concerning their property (which includes a legal claim), care or safety; OR, they are not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
Legal disability has very real consequences for a client. It results in a near total loss of autonomy in the legal process. A client cannot pursue a legal claim except by and through a Litigation Guardian.
A Litigation Guardian is empowered to do “anything” required or authorized to be done by a party to litigation and who alone “instruct[s] the lawyer in the conduct of the [legal] proceeding”

Determining Mental Capacity

The starting point is the legal presumption that a person has capacity until proven otherwise.
Capacity is demonstrated by the ability to“understand” and “appreciate.” To meet the test for capacity to instruct counsel, persons must: (1) understand what they have asked the lawyer to do for them and why; (2) be able to understand and process the information, advice and options the lawyer presents; and, (3) appreciate the advantages, drawbacks and potential consequences associated with the options with which they are presented (i.e. be able to assess risk).
It is only when clients appear unable to understand information provided to them, or to appreciate the consequences of a decision, good or bad, does their capacity come into question.
Incapacity must stem from a mental source such as mental illness, dementia, developmental delay or physical injury. It does not stem a lack of sophistication, education or cultural differences.
The incapacity must affect the party’s decision-making in relation to the issues in the litigation.
Lawyers can educate themselves about common mental disabilities and typical accommodations associated with such disabilities.
Clients are ultimately the best resource in this regard – asking them what accommodations they need to understand, appreciate, and participate in the lawyer-client relationship is usually the best starting point.
Lawyers are precluded from acting on behalf of an incapable client, they are necessarily under an obligation to assess their clients’ capacity to instruct counsel.
While Rules of Professional Conduct impose an ethical duty on the lawyer to take steps to ensure that a legally disabled client’s interests are protected and not abandoned, they do little to provide any meaningful guidance about how a lawyer is supposed to determine a client’s capacity.

The Assessment of Older Adults with Diminished Capacity

The Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers by the American Bar Association, recommends that the first step is to conduct a “preliminary screening” to identify any “red flags” suggesting possible incapacity.

Accommodating Clients with Diminished Capacity

To promote accessibility and inclusion for individuals who have sustained a brain injury and struggle with cognitive impairment, Lawyers might consider one or more of the following during client meetings to provide adequate accessibility and accommodations to address symptoms of ABI.

Provide advance explanation of the purpose of any meeting with the client.
Discuss one issue at a time.
Break information into small, manageable chunks.
Use simple, straightforward, non-legalese language.
Speak at a slower pace to allow the client to process information.
Allow extra time for clients to formulate and ask clarifying questions.
Provide cues to assist recall rather than expecting spontaneous retrieval of information.
Repeat, paraphrase, summarize, and check periodically for accuracy of communication and comprehension.
Confirm understanding by asking the client to explain in their own words what has been said.
If information is not understood, incompletely understood, or misunderstood, provide corrected feedback and check again for comprehension.
Provide summary notes and information sheets to facilitate later recall, including key points, decisions to be made, and documents to bring to the next meeting, etc.
Schedule appointments for times of the day when the client is at peak performance.
Schedule multiple, shorter appointments rather than one lengthy appointment.

During the Court Process

Having a holistic picture of your client and the factors that create vulnerability will promote inclusivity and accessibility for the client in court proceedings. The ability to anticipate the challenges that may arise due to the client’s disability or your needs as a legal professional in representing that client, will allow you to advocate for required accommodations. This will ensure your client has the ability to participate in the proceedings to the fullest extent of their capabilities. This will ensure that accessibility and equity is paramount in a system that is very complicated and difficult to understand for individuals with Acquired Brain Injury or cognitive impairment. It is important to help create a plan of accommodation to assist your client in navigating the challenges of the court process. Ask medical, mental health or support staff for guidance to ensure you are covering the clients needs in physical, cognitive and emotional support needs.

Consideration When Creating a Court Support Plan

How will the proceedings affect my client’s emotional energy?
Will the client’s brain injury create challenges in communication, understanding and ability to answer questions or produce an accurate timeline of events?
Can proceedings be scheduled during the time of day that is best suited to my client’s needs?
What type of behaviours could be disruptive due to the individual’s cognitive impairment/ABI? What ways can I help to support or address this?
Will the client have access to a sensory item to decrease anxiety?
Is the client able to have a communication advocate? – Communication Disabilities Access Canada (CDAC) has a database of professionals who can provide assistance to individuals who need communication support due to issues such as brain injury. They can also provide more information, HERE.
Will the client be able to understand their rights and responsibilities during the proceedings?
Are there physical barriers that require adaptive assistance or support?
Will diagrams or pictures be helpful in explaining the proceedings?
Will the client be able to use sunglasses or glasses to reduce light sensitivity?
Can I access any of these resources to provide support to my client?

Ways to Make Legal Meetings Easier

Small adjustments can make a legal meeting feel more manageable, less stressful, and easier to follow. These ideas can help you prepare ahead of time and communicate what supports you need.

Write Things Down

Bring notes, questions, reminders, or keywords with you so you do not need to rely on memory in the moment.

Ask for the Right Setting

A quieter room, fewer distractions, and a calm environment can make it easier to listen, process information, and respond.

Keep Information Simple

It is okay to ask for shorter explanations, repetition, or written follow-up so important details feel clearer and easier to manage.

Before Your Appointment

Taking a few minutes to prepare before a meeting can reduce stress and help you feel more in control. Use this simple checklist to get ready in a way that works for you.

Gather your notes

Write down questions, dates, symptoms, challenges, or anything you do not want to forget to mention.

Plan your supports

Think about whether you need breaks, written instructions, a support person, or a quieter setting during the meeting.

Leave extra time

Give yourself more time than usual so you are not rushed getting there, logging in, or settling before the conversation begins.

Know what helps you stay calm

Bring water, headphones, a notepad, or another simple support tool that helps you stay focused and grounded.

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“Working with the amazing team and members of BIST has been a profoundly rewarding experience. Navigating the legal system following a life-altering injury can be extremely difficult. Organizations like BIST provide essential resources, information and assistance that help to make the legal process less confusing and stressful for survivors and their families.”

“Since working with BIST I have been able to see the impact such an organization has on people living with ABI’s. Understanding how to navigate the legal system is challenging for even a lay person, so add this complication in to the mix for someone living with a brain injury, would make it almost impossible to understand. Thanks to BIST, survivors and families now have a resource to assist navigating this incredibly difficult process during these incredibly difficult times.”

"Lawyers have to be flexible and encourage the participation of support persons in interviews in client meetings, and even in court procedures. There is case law that has acknowledged the role of support persons and companions, and has even extended legal privilege to discussions involving companions and support persons.”

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