What is 'section 3 counsel' and when is a lawyer appointed to represent someone facing a capacity assessment?

"Section 3 counsel" refers to legal representation arranged under section 3 of the Substitute Decisions Act, which gives a person whose capacity is at issue in a court proceeding the right to be represented by their own lawyer in that proceeding. Where the person doesn't already have a lawyer of their own, the Act allows the court to direct that counsel be arranged for them, typically through a program connected to the Public Guardian and Trustee, so their voice and perspective are genuinely heard rather than the case proceeding only with input from family members or other parties.

This representation is meant to advocate for what the person themselves wants, to the extent that can be determined, rather than simply presenting what others believe is in their best interests — an important distinction, since a family member's view of what's best for their relative doesn't always match what the person would actually choose for themselves. Section 3 counsel commonly comes up in contested guardianship applications and capacity-related court proceedings. If you're involved in a case where someone's capacity is at issue and they don't have their own lawyer, raise the question of section 3 representation with the court or your own lawyer.