Report on legal capacity and supported decision-making


Published:
12 December 2017
Author:
Special Rapporteur on the rights of persons with disabilities
Presented:
To the HRC at its 37th sessions, 6 March 2018

Summary

This report provides a study on the right of persons with disabilities to equal recognition before the law. Throughout history, many groups have been denied their legal capacity as both legal standing and legal agency, including women, minority groups, indigenous persons, migrants, refugees and asylum seekers. Among them, persons with disabilities face a wide range of violations to their right to legal capacity in all jurisdictions worldwide. Challenges are particularly acute for persons with psychosocial disabilities, persons with intellectual disabilities, autistic persons and persons with dementia. Their legal capacity is usually restricted on the basis of having a medical condition or impairment (status approach), having made a decision perceived as poor (outcome approach), or having deficient decision-making skills (functional approach). As a result, they are put under a substitute decision-making regime such as guardianship or curatorship, where a legal representative is appointed to make decisions on their behalf, or where decisions will be made by designated medical personnel or by a court. This report provides guidance to States on how to guarantee the right to legal capacity for persons with disabilities, paying particular attention to the process of law reform on legal capacity.

Technical meeting with notaries

On 23-24 April 2018, the Special Rapporteur on the rights of persons with disabilities and the Human Rights Commission of the International Union of Notaries organized a technical meeting on the role of the notary in upholding the right of persons with disabilities to exercise legal capacity .

The objective of the meeting was to raise awareness among notaries on the recognition of universal legal capacity and the support paradigm introduced by the Convention on the Rights of Persons with disabilities, so that their work would not translate into a de facto restriction of legal capacity.

Some 40 participants representing national notaries and other experts took part in the discussions, which focused on progress and challenges in the recognition of legal capacity of persons with disabilities in the exercise of the notarial function; documentation of measures taken to improve their role in upholding the right of persons with disabilities to exercise legal capacity; and the identification of legal instruments that notaries can use to guarantee the exercise of rights by persons with disabilities.

Inputs received

Download questionnaire: English | French | Spanish

All inputs received in accessible formats are available below. Non-accessible formats are available upon request at sr.disability@ohchr.org.

States

National Human Rights Institutions

Civil Society, including Organizations of Persons with Disabilities

Academics and Individuals

  • Elizabeth Anjorin (non-accessible format available upon request)
  • Glenn Floyd (non-accessible format available upon request)
  • John Chesterman (non-accessible format available upon request)
  • Rene Talbot and Uwe Pankow (non-accessible format available upon request)