Transcript What is legal capacity?

Restoring Voice to
People
Exploring the Right to Legal Capacity
and Supported Decision-Making
Prader-Willi Syndrome Association
Ireland (PWSAI) Conference
Dublin, Ireland
April 19, 2013
Anna Arstein-Kerslake
Centre for Disability Law and Policy
National University of Ireland, Galway
Anna Arstein-Kerslake, Esq.
 Family member
 Community support service provider
 B.A. in Sociology
 J.D. in Law
 Barred to practice in New York
 Marie Curie Research Fellow
 Disability Rights Expanding Accessible Markets (DREAM)
Today’s Presentation
 Human Rights Protections
 Article 12 of the Convention on the Rights of Persons with
Disabilities (CRPD)
 The right to legal capacity
 The right to support for exercising legal capacity
 Supported Decision-Making in Practice
Legal Capacity Law: Legislating
Personhood
 Legal capacity = the law recognizing an
individual as a decision-maker
 What is legal capacity?
 Definition:
 Capacity to act (enter into K, marriage, vote, etc.)
 Capacity to be a holder of rights
Mental Capacity vs.
Legal Capacity
 Mental Capacity = decision-making skills
 Legal Capacity = holder of rights and actor
under the law
 Traditional capacity regimes
 Functional approach
 Mental Capacity Act 2005 (England and Wales)
 Status approach
 Ward of Court (Ireland)
 Outcome approach
 Mental Health Law
Human Rights
 United Nations Convention on the Rights of Persons
with Disabilities (CRPD)
 Article 12 – the Right to Equal Recognition
 Right to Legal Capacity
 Right to Supported Decision-Making
CRPD, Article 12(1-3)
 1. States Parties reaffirm that persons with disabilities
have the right to recognition everywhere as persons
before the law.
 2. States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis
with others in all aspects of life.
 3. States Parties shall take appropriate measures to
provide access by persons with disabilities to the
support they may require in exercising their legal
capacity.
CRPD, Article 12(4)
 4. States Parties shall ensure that all measures that relate to
the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse in accordance
with international human rights law. Such safeguards
shall ensure that measures relating to the exercise of legal
capacity respect the rights, will and preferences of the
person, are free of conflict of interest and undue influence,
are proportional and tailored to the person's circumstances,
apply for the shortest time possible and are subject to
regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be
proportional to the degree to which such measures affect the
person's rights and interests.
CRPD, Article 12
 Requirements of Article 12
 NO denials of legal capacity (“Universal Legal Capacity”)
 REPLACE substituted decision making with supported decision
making
 Substituted decision making =
 “Best Interest” paradigm
 Supported decision making =
 “Will and Preference” paradigm
 Ensure adequate safeguards
Support Paradigm
 Everyone is presumed to be legally independent and
no one can be forced into a supported or
representative arrangement
 Every individual is supported through enabling
conditions to exercise his/her legal capacity
Support Paradigm
 Support for Exercising Legal Capacity
 Support for interactions and potential interactions with the legal
system
 E.g. voting, entering into contracts, financial transactions,
access to justice, etc.
 Supported Decision-Making Generally
 Often interacts with support for exercising legal capacity
 E.g. support for making healthy decisions so your mind and
body are healthy for other kinds of decision-making
 E.g. sex education and capacity to consent to sex
 E.g. Daily living decision-making, sex education, support in
employment, support in education, etc.
Support for Exercising Legal
Capacity
 Access to informal supports
 Accessible information
 Accessible buildings
 Support circles
 Formal supported decision making arrangements
 Representation agreements
 Supported decision-making personnel
 Facilitated decision making (last resort)
 Will and preference cannot be determined
 Imagined will and preference / sole benefit
New Irish Capacity Legislation
 Heads of Bill (2008)
 NUIG campaigning with Amnesty Ireland for CRPD
compliant legislation
 Upcoming conference on April 29, 2013
 Supported decision-making in theory & practice: Ireland’s
capacity bill
 Hopeful that the new draft will include supported
decision-making mechanisms
Supported DecisionMaking Generally and
Prader-Willi
Providing Support
 Meet the individual “where s/he is”
 No preconceived notions
 Be patient
 Listen!
 “I make good decisions!”
 Trust each other
 Empower each other
Listen
 Hopes and desires
 Lifestyle choices
 Where to live
 Who to live with
 Friends
 Family
 Work
 Education
 Preferences for support?
 Who?
 How?
 When?
Nutrition
 Trust each other
 Develop healthy habits
 Dialogue about what is healthy
 Portion sizes
 Calories
 Eating out
 Responsibility
 Forgive each other
Exercise
 Have fun!
 Develop healthy habits
 Dialogue about exercise and health
 Building strength
 Being safe
 Responsibility
 Have fun!
Community Life
 Listen!
 Trust
 Lean on others
 Build circle of support
Its not always easy
 Conflict is OK – its part of the process
 Everyday is a new day
 Let go and have fun together
 Trust each other
Conclusion
 Human rights norms require:
 Respecting the right to be recognized as a person
before the law and the right to exercise legal capacity
 Fulfilling the right to support in exercising legal
capacity
 Listening and empowering
 New support paradigm may be formalized in the new
capacity legislation, but informally we can all do it!