A New Paradigm for Protecting Autonomy and the Right to Legal Capacity

The LCO commissioned this paper to provide background research for its Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice project. The views expressed in this paper do not necessarily reflect the views of the LCO.

 

Abstract

Table of Contents

  INTRODUCTION
  PART ONE - SETTING THE CONTEXT AND CURRENT FRAMEWORK OF CAPACITY LAW
I. TERMINOLOGY
II. RECOGNITION OF SUPPORTS AND ACCOMMODATION IN THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
III. DISABILITY AND OLDER ADULT PERSPECTIVES ON AUTONOMY AND DECISION-MAKING
IV. NEGATIVE AND POSITIVE LIBERTY APPROACHES TO PROTECTING AUTONOMY
V. CANADA’S TRADITIONAL AND CURRENT LEGAL CAPACITY LAWS
  PART TWO - TOWARDS A NEW LEGAL PARADIGM FOR MAXIMIZING AUTONOMY AND THE RIGHT TO LEGAL CAPACITY
I. DEFINING ‘WHO’ EXERCISES AND ENJOYS THE RIGHT TO LEGAL CAPACITY
II. DECISION-MAKING SUPPORTS
III. TYPES OF DECISION-MAKING STATUS
IV. DUTY TO ACCOMMODATE:  FOUNDATION FOR STATE AND THIRD PARTY SUPPORT OBLIGATIONS IN THE DECISION-MAKING PROCESS
V. SAFEGUARDING DECISION-MAKING PROCESSES AND THE RIGHT TO LEGAL CAPACITY
VI. PROTECTING AUTONOMY AND THE EQUAL RIGHT TO LEGAL CAPACITY IN THE FACE OF SERIOUS ADVERSE EFFECTS
VII. SUMMARY OF PROPOSALS
  CONCLUSION
  ENDNOTES

 

 “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity”

Michael Bach & Lana Kerzner

ABSTRACT

In this paper, the authors assert that the principles set out in the United Nations Convention on the Rights of Persons with Disabilities require a paradigm shift in the law of capacity so that the question is no longer: Does a person have the mental capacity to exercise legal capacity? The question is instead:  What types of supports are required for the person to exercise his or her legal capacity?

The authors advocate for a conception of legal capacity that includes as a minimum the capacity to express one’s intention or will in ways that at least one other person can reasonably describe as meaningful.  Based on this minimum threshold, the authors argue for a reformulation of the concept of legal capacity based on three decision-making statuses: (1) legally independent status – where there is reasonable evidence that the person has the ability, by him or herself or with assistance, to understand information that is relevant to making a decision and to appreciate the reasonably foreseeable consequences of a decision; (2) supported decision-making status – where a person needs support from others to express or represent him or herself to third parties, and/or to process information; and (3) facilitated decision-making status – where a person has significant disabilities, is not able to act legally independently, does not have a trusting and committed relationship based on shared life experiences and personal knowledge, and for whom not even a co-decision-maker could discern his or her will or intention without deeper knowledge of the person and his/her ways of communicating.  This last status is conceptualized as temporary until an appointed facilitator can learn how to understand the person’s intention or will through his or her unique way of communicating.

The authors advocate for a positive duty on the state and on third parties to provide supports and accommodations to facilitate decision-making.  Specifically, they propose that the right to access supports includes a right to access the types of supports and combinations of supports that most enhances each person’s autonomy based not on disability status but on the particular individual making the decision and the nature of the decision itself.  The authors set out detailed mechanisms for safeguards, monitoring, information provision, enforcement and independent advocacy to ensure that the autonomy of persons in various decision-making statuses is maximized and such persons are safe from serious adverse effects, including abuse and neglect.  The effect of the paradigm shift that the authors propose is to widen the concept of legal capacity so that more persons with intellectual, cognitive and psychosocial disabilities would be found legally capable and thus their autonomy would be respected.

 

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