Legal Capacity, Disability and Human Rights: Changes and Challenges | OHRH (original) (raw)
Advancing legal capacity jurisprudence
"This article addresses the role of strategic litigation of the right to legal capacity of people with disabilities. It places legal capacity within an international human rights law framework and sets out how it is particularly resonant in the context of disability where its withdrawal leads to arbitrary removal of rights such as the right to property, healthcare decision-making, working and voting. The article examines art.12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), a treaty which, at the time of writing, has been signed by all 27 Member States of the European Union and ratified by 18. In addition, the EU has acceded to the Convention, the CRPD being the first UN human rights treaty that has provided this opportunity.The author provides a review of European jurisprudence in the area of legal capacity and suggests that litigation can play a valuable role in highlighting the wrongs in guardianship systems, and opening up areas for advocacy and law reform."
Cardozo law review, 2017
This symposium explores the meaning of personhood as it is or should be applied to persons with disabilities. This panel focuses on the concept of legal capacity-the ability to make decisions about one’s life, to exercise agency, and to have those decisions recognized by third parties. For my part, I would like to discuss how we might use domestic law — specifically the integration mandate of Title II of the Americans with Disabilities Act and substantive due process — to help us move toward a recognition of universal legal capacity regardless of disability and bring meaningful changes to domestic guardianship regimes. While Article 12 of the U.N. Convention on the Rights of Persons with Disabilities recognizes the right to universal legal capacity, the United States has never ratified that treaty, and domestic law in this area is still underdeveloped. This talk seeks to push the boundaries of the Americans with Disabilities Act to argue, as I have in the past, that guardianship con...
The Convention on the Rights of Persons with Disabilities (CRPD) prohibited deprivation legal capacity of persons with disability based on assessment of mental capacity. The assertion is that, persons with disabilities shall exercise their legal capacity in all aspects of life without any restrictions that are based on mental incapacity (such as, unsoundness of mind, deficit in mental capacity, dotage, etc. This approach signifies a shift from substituted decision making, where another person act on behalf of persons with mental disabilities, to supported decision making where the person with mental disability is assisted in decision making. The rationale for the move lies on the recognition that the right to legal capacity embodies the inherent meaning of what it meant to be human. Without legal capacity a person cannot exercise all other rights and entitlements. Accordingly, States parties to CRPD are required to reform domestic legislations that are based on substituted decision making model and recognize full legal capacity of persons with disabilities in line with supported decision making model. As a Sate party to CRPD, Ethiopia assumed the same obligation. Nonetheless, in its initial report to the Committee on CRPD, the country denies existence of legislation that restricts legal capacity on the grounds of mental incapacity. This research found out that there are restrictions imposed on legal capacity of persons with disabilities on the basis of mental incapacity/disability. The research analyzed the approach employed to restrict legal capacity under the existing legal frameworks of Ethiopia vis-à-vis supported decision-making regime under CRPD. The research is doctrinal and, as such, limited to content analysis of general and specific legal capacity laws of the country (such as, marriage, divorce , will, work and employment, political participation, access to justice and others).
VULNERABILITY AND THE (DISABILITY) LAW: STATUS, CHALLENGES AND PROMISES OF A CONTROVERSIAL CATEGORY
Despite the increasing confidence in the transformative potential of the concept of “vulnerability”, its juridical use is still susceptible of producing some exclusionary consequences: the interchangeable use of terms “vulnerable”, “weak” and “fragile” referred to groups whose members are intended to need a special protection, is likely to have a “labelling-effect” on those who take part to some specific groups, reinforcing their distance from the paradigmatic subject of law. After addressing the current use of the category at stake, the Author will analyse the Convention on the Rights of Persons with Disabilities (UNCPRD), which constitutes a break with the liberal tradition and implements a universal (therefore, non-exclusionary) notion of vulnerability. Particular attention will be paid to the new conception of legal capacity welcomed by art. 12 UNCRPD.
LATIN AMERICAN LEGAL STUDIES Vol. 11 N° 1 (2023), pp. 195-245 , 2023
This paper introduces the developments of the functional model of legal capacity in the Common Law tradition to Spanish-speaking academic audiences. To achieve this, a brief comparison is drawn between different models to assess whether an adult lacks the necessary capacity to enter legal transactions. It is observed that, out of all these models, the functional model is the only one currently enjoying relative acceptance. For this reason, we comment on its virtues and defects. After the introductory part, this piece moves on to a study of how forensic practice in three jurisdictions that are considered examples of this legal tradition, namely England and Wales in the United Kingdom, British Columbia in Canada, and Queensland in Australia, all regulate the legal capacity of people with disabilities.