CRPD and the notion of ‘Legal capacity’
Article 12 of the UNCRPD is still the hottest debated subject in reclaiming our human rights. An early effort by various international actors, notably WNUSP, and the International Disability Caucus, resulted in an excellent articulation of Article 12 (Equal recognition before law) in the UNCRPD.
The following paper by IDA is still widely read and shared among the Disability community. The paper is found and cited in different places, including, of course the website of IDA.
The following position paper on Legal Capacity was drafted by the Legal Capacity Task Force of the International Disability Alliance CRPD Forum.
Article 12 accords to people with disabilities recognition equal to others as full persons before the law. To be recognized as a full person before the law means that one’s legal capacity, including the capacity to act, is equally recognized. Article 12 also imposes a positive duty on the state to establish support measures to ensure that the barriers to exercising legal capacity are removed and that the supports are in place for people with disabilities to fully enjoy and exercise this capacity. Insofar as present day national laws impose barriers to the exercise of legal capacity by persons with disabilities, or deny access to needed supports for the exercise of legal capacity, it is necessary for States in accordance with their obligation under article 4 (1) (b) to modify these laws to bring them in consonance with article 12. In order to assist States Parties in their law reform activity we have outlined the implications of article 12 below.
1. “Legal capacity” is best translated as the “capacity for rights and capacity to act”.
2. “Legal capacity” for the purpose of the Convention on the Rights of Persons with Disabilities means both the capacity for rights and the capacity to act. This applies in the legal systems of all countries for all people, including those with disabilities.
3. The right to enjoy and exercise legal capacity applies equally to all people, including those with disabilities, irrespective of the nature or effects of their disability or apparent need for support. Legal capacity cannot be questioned or challenged based on disability.
4. People with disabilities who need support to exercise legal capacity have a right to be provided with such support. Support means the development of a relation and ways of working together, to make it possible for a person to express him or herself and communicate his or her wishes, under an agreement of trust and respect reflecting the person’s wishes.
5. All people who have difficulty exercising their legal capacity can be accommodated within the support paradigm.
6. All adults, including those with disabilities, have an inalienable right to exercise their legal capacity. This means they cannot be prevented from doing something that they are otherwise permitted to do in the exercise of personal autonomy. They also have the corresponding duty to fulfill their responsibilities. Support and/or reasonable accommodation may be necessary to equalize the effective enjoyment of these rights and fulfillment of duties.
7. All children, including those with disabilities, have an evolving legal capacity, which at birth, begins with full capacity for rights, and evolves into full capacity to act in adulthood. Children with disabilities have the right to have their capacity recognized to the same extent as other children of the same age, and to be provided with age- and disability-appropriate supports to exercise their evolving legal capacity.
8. Parents and guardians have the right and responsibility to act in the best interests of their children while respecting the child’s evolving legal capacity, and the state must intervene to protect the legal capacity and rights of children with disabilities if the parents do not do so, in accordance with the Convention on the Rights of the Child. The parents’ or guardians’ rights to act on behalf of their children cease when the child reaches the legal adult age. This must be the same for all persons to avoid classifying people with disabilities as children at an older age than others.
Building Legislative and Community Structures for Supported Decision Making
9. Governments are responsible for replacing existing substitute decision making laws and policies with supported decision making mechanisms that are recognized in legislation and have corresponding policies and programmes to effectively implement a system of supported decision making.
10. Governments are responsible for developing, supporting, promoting and offering support services, and for establishing safeguards to ensure a high quality of support and its compliance with standards such as: respect for the rights, will and preferences of the person, freedom from conflict of interest and undue influence, and being tailored to individual circumstances.
11. Support must not restrict the rights of the person or coerce the person to act in a particular way. Support must not affect his or her capacity to act. A person cannot be made to accept support against his or her will.
12. Different types of support should be promoted and encouraged to meet the wide range of needs among people with disabilities and allow for personal choice among different options. Types of support may include, for example, support networks, personal ombudsperson, community services, peer support, personal assistant, and advance planning. Age, gender, cultural and religious preferences, and similar factors must be taken into account, as well as needs expressed by people with different types of disabilities.
13. Interim measures may be needed when it is difficult to determine a person’s wishes and it appears that the person may need support, or when support fails despite good efforts. In such cases, skilled supporters trained in establishing proper communication and the obligation to respect autonomy should be available to help. Governments should also promote advance planning for support that people may anticipate needing in the future.
14. A person may agree with his or her supporter(s) that the supporter(s) can make certain types of decisions, should the supporter be unable to determine the person’s wishes at a particular time. This does not mean that the person loses his or her right to make those decisions. The supporter is bound to keep making the effort to communicate and to follow the person’s wishes as far as they may be known.
15. If no such authorization has been made and communication has failed despite good efforts, skilled supporters should continue trying to establish communication, while a decision is made that has the least possible effect in foreclosing opportunities for later revision.
16. Decisions that involve highly personal values and/or controversial measures that may violate a person’s physical or mental integrity such as sterilization, cochlear implants, neuroleptic drugs, electroshock and psychosurgery, should not be permitted without the informed and affirmative consent of the person concerned.
Dismantling Substitute Decision Making Systems
17. Governments must act immediately to
a. recognize the equal rights of all persons to have and exercise legal capacity without discrimination based on disability;
b. establish a legislative, policy and financing basis for
i. provision of support in decision making in accordance with the principles outlined above; and
ii. the duty of all those in the public and private sectors to accommodate persons with disabilities who may require support in decision making; and c. abolish
i. plenary guardianship;
ii. unlimited time-frames for exercise of guardianship;
iii. the legal status of guardianship as permitting any person to override the decisions of another;
iv. any individual guardianship arrangement upon a person’s request to be released from it;
v. any substituted decision-making mechanism that overrides a person’s own will, whether it is concerned with a single decision or a long-term arrangement; and
vi. any other substituted decision-making mechanisms, unless the person does not object, and there is a concomitant requirement to establish supports in a person’s life so they can eventually exercise full legal capacity.
18. All laws and mechanisms by which a person’s capacity to act can be deprived or restricted, based on differences in capabilities, must be abolished or replaced with laws that recognize the right to enjoy and exercise legal capacity. In addition to substituted decision-making mechanisms as mentioned above, this includes declarations of incapacity, interdiction, welfare orders, commitment to institutions, and compulsory hospitalization or medical treatment.
19. Similarly, any laws disqualifying a person from enjoying rights or performing legal acts or responsibilities based on disability must be abolished. For example, voting, holding public office, serving on juries, giving or refusing free and informed consent, inheriting or owning property, marriage and raising children, are rights guaranteed in the Convention that also involve an exercise of legal capacity. Support and/or appropriate accommodation must be provided where necessary to exercise these rights and responsibilities. The signatures of people with disabilities are entitled to equal recognition as those of others.
20. In implementing Article 12, governments must address its implications for criminal responsibility and the criminal justice system. Persons with psychosocial disabilities have an equal legal capacity with others to be held responsible for wrongdoing, whether through a civil, criminal or other process, and to be provided with all needed supports and accommodations to ensure access to justice and conditions of punishment that respect human rights and dignity. The death penalty and similar harsh measures must be abolished to ensure humane treatment for all.
21. Implementation of all aspects of Article 12, including the development and provision of support, needs the active involvement and partnership of people with disabilities and the organizations they choose to represent their interests (in particular, organizations of people with disabilities controlled by themselves). All those who seek the protection of the Convention within an evolving concept of disability should be welcomed.