Implementing Legal Capacity Under Article 12 of the UN Convention on the Rights of Persons with Disabilities: The Difficult Road From Guardianship to Supported Decision-Making

TLDR: In this paper, the authors propose a paradigm shift from substituted to supported decision-making, which represents nothing less than a “paradigm shift away from well-established butincreasingly discredited notions of substituted decision making.

Abstract: In deceptively simple language, Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”), Equal Recognition before the law, provides that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” If, as is clear from the deliberations that produced this article, Article 12’s use of the term “legal capacity” includes not simply the capacity to have rights (or passive capacity) but also the capacity to act or exercise one’s rights, an important question that arises is how to address the circumstances of individuals with disabilities who may not be able to exercise their legal capacity without some kind of assistance or intervention. Article 12(3) addresses this question in language that once again seems straightforward and uncontroversial: “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” Yet this use of the word “support,” and the related concept of supported decision making, represents nothing less than a “paradigm shift” away from well-established but increasingly discredited notions of substituted decision making. Rhetorical identification of the shift from substituted to supported decision making, however, is one thing; understanding what these terms mean, and fully implementing a regime truly oriented toward supporting rather than supplanting the decision making rights of people with disabilities, is quite another matter.