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

Around the world, experiences of peer support, advanced directives, advocacy and other support measures are showing the way to allow persons with disabilities to make their own decisions on all aspects of their lives. This is essential for living with dignity, according to one's values and preferences. The principle of universal legal capacity protects this fundamental right, and ensures that all persons - with or without disabilities - enjoy the same rights and are equal before the law.

This report establishes a path towards universal legal capacity on the basis of the Convention on the Rights of Persons with Disabilities and other international human rights treaties, illustrated by experiences from a growing number of countries, including Costa Rica, Ireland, Kenya and Sweden.

Throughout history, many persons with disabilities have been deprived from exercising their rights by having their legal capacity denied. While this has been widely accepted and viewed as necessary to protect the individuals concerned and society, it has proved to be wrong.

Denial of legal capacity takes away people’s control over their lives, from critical decisions like getting married, forming a family, choosing where to live or with whom, to all aspects of their daily routines, drastically reducing their opportunities to participate in society. It has also allowed the proliferation of harmful practices, such as coercion, institutionalization and sterilization, which resulted in the ultimate objectification of persons with disabilities.

The recognition by States of the full legal capacity of all persons with disabilities, and the availability of supported decision-making are necessary steps for making their rights a reality, providing the freedom and opportunity to lead meaningful lives, in accordance with their values and preferences.

The report reminds States of their obligations as signatories of the Convention, and provides recommendations to ensure the equal recognition of persons with disabilities before the law.

  • Recognize the right to legal capacity of persons with disabilities in domestic legislation, abolishing all laws and regulations that restrict this fundamental right.
  • Suspend all new applications of substitute decision making, and create a path for persons with disabilities under such regimes to have their legal capacity restored.
  • Promote and guarantee the access of persons with disabilities to mechanisms of supported decision making, by providing adequate funding, policy frameworks produced in consultation with persons with disabilities, and by adequately training judges, service provides and all other relevant State authorities.

The report also calls the UN system and all international cooperation actors to play their part towards the implementation of universal legal capacity frameworks globally, providing funding, technical capacity and general support to States.

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)