Throughout history, many persons with disabilities have been deprived of the exercise of their rights by denying their legal capacity. While the practice has been widely accepted and viewed as necessary to protect both 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.
In this report, the Special Rapporteur establishes a path towards universal legal capacity on the basis of the UN Convention on the rights of persons with disabilities (CRPD) and other international human rights treaties, illustrated by experiences from a growing number of countries, including Costa Rica, Ireland, Kenya and Sweden.
In its conclusion, the document reminds States of their obligations as signatories of the CRPD, and provides a series of recommendations to ensure the equal recognition of persons with disabilities before the law. These include:
- Recognition of the right to legal capacity of persons with disabilities in domestic legislation, abolishing all laws and regulations that restrict this fundamental right.
- To 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.
- To 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 Special Rapporteur 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, as they embark in universal legal capacity implementations.