Legal Capacity of Persons with Intellectual Disabilities
In: Minority Reports. Cultural Disability Studies, 2018
Article 12 UNCRPD encompasses the universal recognition of legal capacity of all persons with disabilities on an equal basis with others, both in terms of identity and agency. Persons with intellectual disabilities and mental health problems could have their legal capacity deprived or restricted under the institution of protective measures, such as guardianship. Article 12 of the UNCRPD reframes the issue of legal capacity in terms of giving support to persons with disabilities that may need to take decisions, while deleting any system which restricts their right to take decisions on the grounds of disability. Under art.12 UNCRPD States have an obligation to replace systems based on substituted decision-making by a system ensuring free choice through support in decision-making, implying the duty to take measures to provide any person with disabilities the support needed in the expression of their choices, not to decide for them «in their best interest».
Keywords: legal capacity; intellectual disabilities; guardianship; choice; supported decision making.