Table 3: Disability and the right to supported decision-making

Examples of Human Rights Violations

An individual is denied the right to make decisions about their life because the court has declared them legally incapacitated and appointed a guardian.
An individual is denied the opportunity to decide where he/she lives and with whom.
An individual is denied the right to vote because the court has declared them legally incapacitated.

Human Rights Standards

Treaty Body Interpretation

CRPD 12 (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.

(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: recommending that Argentina “launch an immediate review of all current legislation that is based on a substitute decision-making model that deprives persons with disabilities of their legal capacity. At the same time, the Committee urges the State party to take steps to adopt laws and policies that replace the substitute decision-making system with a supported decision-making model that upholds the autonomy, wishes and preferences of the persons concerned. In addition, the Committee recommends that training workshops on the human rights model of disability be organized for judges to encourage them to adopt the supported decision-making system instead of granting guardianships or trusteeships.”
CRPD/C/ARG/CO/1 (CRPD, 2012).

CRPD: recommending that Spain and Tunisia review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences. It further recommends that training be provided on this issue for all relevant public officials and other stakeholders. CRPD/C/ESP/CO/1 (2011), CRPD/C/TUN/CO/1(2011).

CRPD: recommending that Hungary use effectively the current review process of its Civil Code and related laws to take immediate steps to derogate guardianship in order to move from substitute decision-making to supported decision-making, which respects the person’s autonomy, will and preferences and is in full conformity with article 12 of the Convention, including with respect to the individual’s right, on their own, to give and withdraw informed consent for medical treatment, to access justice, to vote, to marry, to work, and to choose their place of residence. CRPD/C/HUN/CO/1 (2012).

CRPD: urging China to “adopt measures to repeal the laws, policies and practices which permit guardianship and trusteeship for adults and take legislative action to replace regimes of substituted decision-making by supported decision making, which respects the person’s autonomy, will and preferences, in the exercise of one’s legal capacity in accordance with Article 12 of the CRPD. In addition, the Committee recommended that China, in consultation with DPOs, prepare a blueprint for a system of supported decision-making, and legislate and implement it which includes:

Recognition of all persons’ legal capacity and right to exercise it.

Accommodations and access to support where necessary to exercise legal capacity.

Regulations to ensure that support respects the person’s autonomy, will and preferences and establishment of feedback mechanisms to ensure that support is meeting the person’s needs.

Arrangements for the promotion and establishment of supported decision-making.”
CRPD/C/CHN/CO/1 (2012).

CRPD: urging Peru to abolish the practice of judicial interdiction and review the laws allowing for guardianship and trusteeship to ensure their full conformity with article 12 of the Convention and to take action to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will, and preferences.
CRPD/C/PER/CO/1 (2012).