Legal capacity is a human right for all persons – all persons should enjoy legal capacity on an equal basis with others in all aspects of life. The term recognizes two things: the capacity to have rights and the capacity to act upon those rights. In practice, legal capacity ensures that a person is recognized before the law and can make decisions about his or her own life, exercise rights, access the civil and court systems, enter contracts, and speak on his or her own behalf.
Most adults enjoy the ‘legal capacity’ to make their own decisions, to enter agreements with others, and to be recognized and respected by others for this purpose. Historically, the legal capacity of some people in society can be restricted. In this case, the State puts protective measures in practice as it is believed that the individual is unable to make decisions. People with intellectual disabilities are extremely vulnerable to having their legal capacity questioned by others, restricted, or removed altogether. This can happen when an individual goes to make a personal decision – like where they want to live, health care decisions requiring ‘informed consent’, and/or financial decisions. When this happens, a person can be required to have their legal capacity ‘tested’ and sometimes it is removed. When removed, another person or agency is given the authority – as a guardian, trustee, or other substitute decision maker – to make decisions on behalf of the individual. As a result, people are denied having a voice in their own life; they have no power to make, control, or even influence decisions about issues that are important to them. The restriction of legal capacity is a rapid and often irreversible process. Slightly more than half of people with intellectual disabilities in Canada report they make none or only some of the decisions about their everyday activities.
Substitute decision‐making not only removes the legal capacity to act, but, it does so often against the person’s will and sometimes without their knowledge. This denies people a voice in their own lives and results in the social perception by others that the individual is not a full person, but rather something to be managed by others. This denial of personhood marginalizes people with disabilities, making them more vulnerable to abuse by others.
As outlined in the UN Convention on the Rights of Persons with Disabilities, legal capacity is a fundamental right, regardless of perceived level of disability or support required to exercise it. All people with disabilities should “enjoy legal capacity on an equal basis with others in all aspects of life.” No one should be excluded from the process of making decisions about their lives. Article 12 of the CRPD states very clearly that no one should be deprived of their legal capacity just because the person needs help in making decisions. People with significant support needs or those who do not communicate or express themselves in ways that are easily understood by others must have a continued presence in the decision‐making process – this can be achieved via accommodations and/or supported decision making.
Across the country there is uneven access and recognition of the use of accommodations and supported decision making with respect to realizing a person’s right to legal capacity. In all places, reliance on substitute decision making arrangements and guardianship remain far too commonplace. Canada’s ratification of the UN Convention of the Rights of Persons with Disabilities included an interpretive declaration and conditional reservation saying that “Article 12 permits supported and substitute decision‐making arrangements”, and that “Canada reserves the right to continue to use substitute decision‐making arrangements in appropriate circumstances”. CACL do not support the interpretive declaration and reservation.
Whether in personal life, in matters related to health-care, finances, property, or anything else for that matter, adults with intellectual disabilities must have their legal recognized and supported. Adults with intellectual disabilities have the right to act legally independently and must be provided appropriate accommodation to exercise this right. Where required, adults with intellectual disabilities must be assured access, with appropriate safeguards, to needed supports. These supports must include representatives and support networks – people who are legally recognized to assist a person to make decisions and/or represent them in the decision‐making process, based on their personal relationship, moral and ethical commitment to the individual’s well‐being, and their best understanding of the person’s will and intention.
Implementing Article 12 requires a real shift towards a human rights approach to legal capacity, by replacing substituted decision-making regimes with the appropriate support measures persons with disabilities need to exercise their legal capacity.
UN CRPD, Article 12, Equal Recognition As A Person Before The Law (Plain Language Summary)
- Agree that people with disabilities have the right to be recognized as people before the law.
- Agree that people with disabilities are capable like all other people on legal issues in all areas of their lives.
- Will take action to make sure that people with disabilities can get and use support if they need it to work on legal issues.
- Agree that where people with disabilities need support on legal or financial issues:
– They will be protected from abuse;
– Their rights and their choices will be respected;
– People who give support will not pressure people with disabilities into making a decision;
– They get the help they need, only for the time they need it and only as much as they need;
– The courts will review the support received.
- Agree and will make sure that people with disabilities:
– Have the right to own or get property;
– Have the right to control their money or other financial affairs;
– Have the same opportunities as other people to get bank loans, mortgages and credit;
– Cannot have property taken away without a reason.