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In Art 12 of the UN Convention on the Rights of Persons with Disabilities, ‘capacity’ means a person’s rights and status in law. Article 12 asserts the rights of persons with disabilities to recognition of their legal personality and of their full legal capacity, thus defined. It requires the provision of support to enable people to exercise legal capacity, and minimum necessary intervention in the application of any ‘measures that relate to the exercise of legal capacity’, which phrase clearly must encompass deputyship, guardianship and other such arrangements.Those provisions all accord with accepted best practice in balancing autonomy and protection in modern legal regimes. The UN Committee on the Rights of Persons with Disabilities, though established under the Convention, would destroy that balance with the fictionthat everyone, if given sufficient support, can act and decide validly, and can resist undue influence in doing so. To assert and protect their welfare interests and human rights, some people require measures responsive to their actual incapabilities such as guardianship – however termed. The proposals for the Committee are contrary to the purpose and provisions of the Convention, and would put some people with intellectual disabilities at risk of discrimination, deprivation and abuse.
The full version of this article appears in issue 1 of 2014 of Elder Law Journal. If you subscribe to the journal please click here to read the full article.