Transcript Restoring Voice to People { Legal Capacity & Article 12 of the UNCRPD Anna Arstein-Kerslake NUI Galway Brussels Team Meeting November 25, 2011

Restoring Voice to
People
{
Legal Capacity & Article 12 of the
UNCRPD
Anna Arstein-Kerslake
NUI Galway
Brussels 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
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Who has legal capacity?
 Personhood

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Historical denial of legal capacity
(women, 3/5 of a person, etc.)
Debunking the fallacy of rationality
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e.g. capacity to consent to sexual
relations
Defining Legal Capacity
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What does Article 12 call for?
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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
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Status-Based Assessments
Functional Assessments
Outcome-Based Assessments
Good Practices in Supported Decision-Making
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British Columbia, Canada
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Germany and Israel
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Representation Agreements
Elimination of determinations of ‘incapacity’
Sweden
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Personal Ombudspersons
Good and Bad Practices in Legal
Capacity Law
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Irish Lunacy Act 1871
Indian National Disability Trust Act
UK Mental Capacity Act 2005
US Guardianship Law
Lessons in Reform of
Legal Capacity Law
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Review of literature/legislation/case law
Qualitative interviews with self-advocates and
professionals in the field
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British Columbia, Canada
Victoria, Australia
Sweden
Germany
Involvement with law reform
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India
Ireland
US
Methodology