The Universal Right to Legal Capacity-Clearing the Haze

Research output: Contribution to journalArticlepeer-review

Abstract

The right to legal capacity (Article 12) is the most contested realization of the UN Convention on the Rights of Persons with Disabilities (CRPD). If implemented, it would revolutionize the position of persons with psychosocial disabilities, intellectual disabilities and other cognitive conditions. Yet its implementation has been hindered by conceptual misunderstandings and a lack of distinction between the key questions in the debate. This contribution first demonstrates that advocates and opponents apply 'substitute decision-making' and 'legal capacity' differently, leading to different expectations. Second, it substantiates that once all the concepts are understood correctly, three distinct questions underpin the interpretation of Article 12 CRPD: (1) What makes a person's will reliable? (2) What is good support? and (3) How can such a reliable will be diverged from, given other interests? Instead of giving the answers, this contribution brings consistency to the debate and proposes a pathways for a future approach to legal capacity.

Original languageEnglish
Article numberngac021
JournalHuman Rights Law Review
Volume22
Issue number3
DOIs
Publication statusPublished - 7 Jun 2022

Bibliographical note

Publisher Copyright:
© 2022 The Author(s). Published by Oxford University Press. All rights reserved.

Copyright:
Copyright 2022 Elsevier B.V., All rights reserved.

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