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Restoring Voice: Legal Capacity and Article 12 of the UNCRPD

This report explores the definition and implications of legal capacity as outlined in Article 12 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD). It aims to clarify legal capacity, identify best practices in supported decision-making, and analyze effective legal reforms. Key goals include establishing equal legal recognition, replacing substituted decision-making with supported alternatives, and debunking misconceptions about capacity. The report examines successful models from various countries and provides recommendations for reforming legal capacity law, ensuring protection and empowerment for individuals.

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Restoring Voice: Legal Capacity and Article 12 of the UNCRPD

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  1. Restoring Voice to People Legal Capacity & Article 12 of the UNCRPD Anna Arstein-Kerslake NUI Galway Brussels Team Meeting November 25, 2011

  2. Clarify definition of Legal Capacity & Article 12 • Identify best practices in supported decision-making models • Identify best practices in law reform • Provide recommendations for reform of legal capacity law Goals

  3. What is legal capacity? • Capacity to act (enter into K, marriage, vote, etc.) • Capacity to be a holder of rights • Who has legal capacity? • Personhood • Historical denial of legal capacity (women, 3/5 of a person, etc.) • Debunking the fallacy of rationality • e.g. capacity to consent to sexual relations Defining Legal Capacity

  4. What does Article 12 call for? • Equal recognition under the law • Recognition of legal capacity • Replacement of substituted decision-making systems with supported decision-making systems • Ensuring there are appropriate safeguards and utilization of the least restrictive alternative • The integration of 1st and 2nd generation rights in Article 12 Clarifying Article 12

  5. Bad Practices in Legal Capacity Law • Status-Based Assessments • Functional Assessments • Outcome-Based Assessments Good Practices in Supported Decision-Making • British Columbia, Canada • Representation Agreements • Germany and Israel • Elimination of determinations of ‘incapacity’ • Sweden • Personal Ombudspersons Good and Bad Practices in Legal Capacity Law

  6. Irish Lunacy Act 1871 • Indian National Disability Trust Act • UK Mental Capacity Act 2005 • US Guardianship Law Lessons in Reform of Legal Capacity Law

  7. Review of literature/legislation/case law • Qualitative interviews with self-advocates and professionals in the field • British Columbia, Canada • Victoria, Australia • Sweden • Germany • Involvement with law reform • India • Ireland • US Methodology

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