Guardianship litigation asks the court to do something profound: to decide who will make decisions for a person who may no longer be able to make them alone. In that setting, the voice of the allegedly incapable person matters a great deal, and section 3 counsel exists to ensure that voice is heard. But what happens when the person cannot actually give instructions? The decision of Justice Akbarali in Groves v. Groves, 2026 ONSC 1206, provides guidance on the limits to section 3 counsel’s advocacy.
The Statutory Role
Section 3 of the Substitute Decisions Act, 1992 (the “SDA“) allows the court, where the capacity of an unrepresented person is in issue in a proceeding under the Act, to direct the Public Guardian and Trustee (the “PGT“) to arrange legal representation for that person. The person is then “deemed to have capacity to retain and instruct counsel.” This representation, commonly called “section 3 counsel,” is a safeguard that protects the dignity, privacy, and legal rights of a person alleged to be incapable, and gives that person a voice before the court.
The deeming provision is important, but it is not limitless. As the courts have repeatedly held, section 3 counsel remains counsel, not a party, and not a substitute decision maker. The role of section 3 counsel is distinct from a litigation guardian. Section 3 counsel is to advise the client of their rights and to act on the client’s instructions. Where genuine instructions cannot be ascertained, counsel cannot manufacture them.
The Facts in Brief
An allegedly incapable 85-year-old father diagnosed with Alzheimer’s disease, had named his two children as his attorneys for property and personal care. Following a marked cognitive decline, the father became involved in a romantic relationship, which his children characterized as predatory. Over time, the father’s girlfriend removed the allegedly incapable father on three occasions from the retirement residence where he received daily care, ultimately taking him to live with her, opening a new bank account in his name, and insisting that all communication between the father and his family pass through her.
A series of capacity assessments found the father incapable of managing property, incapable as to personal care, and, by June 2025, incapable of both making a decision about his shelter and instructing legal counsel. The girlfriend arranged for the father to be represented by a lawyer. When the assessment confirmed the father could not instruct counsel, that private retainer was converted by the PGT into a section 3 counsel retainer.
Where Section 3 Counsel Went Too Far
Section 3 counsel filed a letter setting out the father’s “position” together with a statement of law and made lengthy submissions: that the father wished to remain with his girlfriend, to access his funds for travel with her, and that a neutral third-party attorney for property should be appointed. Counsel opposed any guardianship order and criticized the children’s conduct, including their purchase of a condominium the father had not moved into. The children asked the court to strike the letter and the statement of law.
Justice Akbarali declined to strike the materials but placed no significant weight on them. The Court accepted the uncontested medical evidence that John was incapable of instructing counsel. Because counsel could not obtain capable instructions as a matter of fact, she was without instructions notwithstanding the statutory deeming provision. In the Court’s view, counsel had “strayed into the role of litigation guardian,” a role she did not occupy. Several features drove that conclusion: counsel took positions in which the father had no discernible interest, advanced the position that the girlfriend would have been expected to take, litigated as though the father were capable when everyone agreed he was not, and asserted facts that were not evidence and, in some cases, were simply incorrect.
The Distinction That Matters: Counsel Versus Litigation Guardian
The decision reinforces a distinction the courts have drawn before, notably in Dawson v. Dawson, 2020 ONSC 6724, on which Justice Akbarali relied. Both a litigation guardian and section 3 counsel protect the interests of a vulnerable litigant, but they do so in significantly different ways. A litigation guardian stands in the shoes of the person under disability and makes substitute decisions on their behalf. Section 3 counsel does not. Counsel takes instructions, and absent instructions, counsel is not to act, and cannot take a position on the assumption that the client would have agreed with it or that it is in the client’s best interests. Also see our previous blog post on this topic.
Because the role of section 3 counsel is to provide a neutral position that represents the alleged incapable’s position, their positions often carry greater influence with the court. When counsel advances an uninstructed position, that influence can quietly tilt the balance among the parties, which is precisely why client instructions, and not the lawyer’s view of the client’s best interests, are paramount.
Key Takeaways
The role of section 3 counsel straddles a thin line, where they must advocate for their client to the best of their ability, but never advance a position that they do not and cannot receive.
- Instructions are the foundation. Section 3 counsel exists to convey the client’s instructions and wishes. Where capacity to instruct is genuinely absent, the statutory deeming provision does not fill the gap, and counsel should not advance a position as though it did.
- Section 3 counsel should also not fill the role of a litigation guardian. The two roles are complementary but distinct. Where a client cannot instruct on a particular issue, the answer may be a litigation guardian or amicus, not counsel stepping into a substitute decision making role.
- Courts will be wary when section 3 counsel advances positions that seem to promote a party’s interests. Positions that mirror those of another party, invite scrutiny and undermine the perception of counsel’s independence.
Acting as section 3 counsel is a privilege and an important safeguard for vulnerable people, but it is a role defined by its limits. Where section 3 counsel cannot receive instructions, and the lawyer should report as such to the Court rather than fill the silence with a position the client never gave.
Thank you for reading,
Filbert Yung