Legal capacity

“Legal capacity” is a judiciary term that means two things: the capacity to have rights and the capacity to act upon those rights. In practice, legal capacity ensures that a person is recognized before the law and can make decisions about his or her own life, exercise rights, access the civil and juridical system, enter contracts, and speak on his or her own behalf. Historically, the legal capacity of some people in society can be restricted. In this case, the state put protective measures in practice, as it is believed that the individual is unable to make decisions. When someone is deprived of legal capacity, an appointed person, called guardian is making decision instead of the person. This is called substituted decision-making. In contrary to that, supported decision-making helps people to exercise their legal capacity.

While all countries have different legislation and practices related to legal capacity, many of them unfortunately use these restrictive measures to prevent persons with intellectual disabilities from making decisions, because they are seen and labeled as “incompetent” or “incapable” of doing so. Formally, this is done by appointing a guardian, usually a family member, but sometimes a doctor, service provider, or a representative of an authority, to take decisions on behalf of the person. In this substituted decision-making model, the person with a disability retains no decision-making power, no control over their life, and no voice in matters concerning them. The restriction of legal capacity is a rapid and often irreversible process. Most countries in Europe still have substituted decision-making models in place, varying from more progressive models to very old-fashion ones.

However, according to Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), all people with disabilities should “enjoy legal capacity on an equal basis with others in all aspects of life.” This implies having the capacity to enjoy their rights and the capacity to act based on them, for example by making decisions and legally binding arrangements with others in the area of personal life – where and how to live, what to work, how to be supported, forming relationships, family matters, health care, property and finances. Article 12 of the CRPD states very clearly that legal capacity is not to be mixed with mental capacity, and the ability to make decisions, but it means the equal recognition of persons before the law. No one should be deprived of their legal capacity, just because the person needs help in making decisions.

Moreover, governments should provide persons with disabilities with any support they might need in their decision-making. Support can be both “formal and informal“ and can constitute “arrangements of varying type and intensity”. The type and intensity of support should echo the diversity of people with disabilities. Therefore, a range of appropriate measures should be available for persons with disabilities to receive adequate support, according to their will and needs. For a person with an intellectual disability, support could include providing information in plain language or easy-to-read, explaining different options, or, in some exceptional cases, articulating an opinion based on a deep knowledge of the will and desires of a particular individual, which stems from a long-lasting trusting relationship.

Whether in their personal life, in matters related to health-care, finances, property, or anything else for that matter, people with intellectual disabilities should have a say, and their opinions and decisions should be taken into account and respected.

Implementing Article 12 of the CRPD requires a real shift towards a human rights approach to legal capacity, by replacing substituted decision-making regimes with the appropriate support measures persons with disabilities need to exercise their legal capacity.

Therefore, Inclusion Europe is convinced that supported decision-making, a framework which recognizes that all people are making decisions with support, guidance or assistance from others, should be the norm and acknowledged form of support for persons with intellectual disabilities. In light of that, Inclusion Europe has launched this website that collects good practices of supported decision-making to stimulate the debate about supported-decision making models, provisions and practices.

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