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Restoring Voice to People

Legal Capacity & Article 12 of the UNCRPD

Anna Arstein-KerslakeNUI GalwayBrussels Team Meeting November 25, 2011

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

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

relationsDefining Legal Capacity

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

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

Irish Lunacy Act 1871 Indian National Disability Trust Act UK Mental Capacity Act 2005 US Guardianship Law

Lessons in Reform of Legal Capacity Law

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