By, Shelby Horner, Elder & Disability Law Clinic Student, Spring 2023
Like many treaties of its ilk, the Convention for Persons with Disabilities (“CRPD” or the “Convention”) was created with the intention of protecting and supporting vulnerable communities internationally. The treaty was created through a collaborative process of hundreds of people with disabilities worldwide. Through thirty-seven articles, the Convention has paved the way for countries to ensure equal rights, representation, and respect for those living with disabilities abroad. One of the many themes the convention addresses is the legal capacity for people with disabilities to make their own decisions and be treated equally under the law. Article 12 of the treaty discusses what the convention calls “supportive decisions making” and obligates state parties to “recognize that persons with disabilities enjoy legal capacity on equal basis with others in all aspects of life”.[1] Section five of the Article goes on to require states to take all appropriate measures to assure that people with disabilities can control their own financial affairs and not be deprived of property.[2] These two subsections and Article 12 in general transcend the idea that people with disabilities inherently have rights under the law by enshrining their ability to actually enforce those rights and act on their own behalf. What is less certain in the context of these articles, is how to properly assist someone in doing the latter: exercising their rights. This is an especially important question because the convention and other human rights organizations have understood Article 12 to outlaw legal guardianships and conservatorships and instead favor a model of supportive decision making.
Supportive decision making under Article 12 of the CRPD allows an individual to keep their legal capacity before the law. Supportive decision making provides an individual with a support system that will work in solidarity with them to act and speak on their own behalf. According to the Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities, there is no set policy framework for how supported decision-making model should be achieved and it can be realized through many different forms.[3] “The individual is the decision maker; the support person(s) explain(s) the issues, when necessary, and interpret(s) the signs and preferences of the individual.”[4] This is different from substitute decision making, like legal guardianships and conservatorships, which gives a “guardian” the legal right to make decisions on behalf of an individual with a disability. Supportive decision making is all about keeping legal capacity intact and allowing the person who is most affected to make decisions.
Giving state parties an open field in which to build their model of supportive decision making is important as each state has different resources, customs, and interpretations of the Articles and their own laws. Although parties are given a lot of deference, some state parties have been quicker to make changes than others. When you become a state party to the Convention, you submit to periodic observations by the Convention on how well you are complying with the articles. Many of these comments are a brief recognition that the state is not in compliance with the related article. For instance, Spain’s observation by the CRPD simply expresses concern that they are continuing with a model of substituted decision making, rather than supportive decision making. [5] Most states have comments like this.
However, some state parties have gone farther in ensuring that they are following the Convention. Canada is one country that the Convention has praised as the lead model for supportive decision making. In Canada, an individual with a disability can enter into an agreement of representation with a support network and the individual does not have to demonstrate legal capacity to enter said agreement.[6] This model ensures that legal capacity before the law is never taken away from an individual. It creates a support network for an individual to go for questions or as a mediator between a state or medical entity and the individual.
Mexico is another state party that has recently made several strides to change their guardianship and conservatorship frameworks. Pushed by organizations like Deciding Is My Right Coalition, the Supreme Court of Mexico has handed down several rulings finding Mexico’s guardianship framework to be unconstitutional. [7] On the tail of these recent decision, Congresswoman Marcela Zuniga has introduced a bill that will implement aspects of supportive decision making like setting up legal frameworks for people with disabilities to sign contracts and understand legal documents. [8]
States are progressing under the Convention with varied success, and some have made little to no progress at all. Further, the United States has only signed the treaty, not ratified it, therefore it’s not required to comply with Article 12. The future of guardianships and conservatorships for state parties under the Convention is not certain; the Convention doesn’t have a police body to force state parties to implement the articles in the way they want. But what is certain, is the Convention will continue to push for maintaining legal capacity for people with disabilities and implementing supportive decision making as an alternative to more restrictive means of legal support.
[1] Committee on the Rights of Persons with Disabilities, General Comment No. 1 (Article 12, section 2: Equal recognition before the law)
[2] Committee on the Rights of Persons with Disabilities, General Comment No. 1 (Article 12, section 5: Equal recognition before the law)
[3] UN Office of the High Commissioner for Human Rights (OHCHR), Handbook for Parliamentarians on the Convention on the Rights of Persons With Disability: from Exclusion to Equality Realizing the Rights of Persons With Disabilities 89-90 (2007).
[4] Id.
[5] Comm. on the Rights of Persons with Disabilities, Concluding Observations on the Combined Second and Third Periodic Reports of Spain, U.N. Doc. C/ESP/CO/2-3 (2019).
[6] Representation Agreement Act, RSBC 1996, c 405 (Can.).
[7] Carlos Rios Espinosa, On the Right to Decide,Hum. Rts. Watch, (Feb. 16, 2023,12:00 AM),https://www.hrw.org/news/2023/02/16/right-decide.
[8] Id.