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Private Client Law

03 JUN 2014

Comparing old and new paradigms of legal capacity

Lucy Series

Research Associate

Comparing old and new paradigms of legal capacity

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was signed in 2006 and ratified by the UK in 2009.Article 12 CRPD - the right to equal recognition before the law – concerns the exercise of legal capacity.Some scholars and activists have argued that Article 12 ushers in a 'new paradigm' for thinking about human rights and legal capacity, which would guarantee it on a universal – rather than qualified – basis.This new paradigm requires states to ensure support is available to enable people with disabilities to exercise their legal capacity on an equal basis with others.The ‘new paradigm’ is also said to prohibit ‘substitute decision making’, such as best interests decisions under the Mental Capacity Act 2005.This article explores the history of Art 12 CRPD, and discusses its interpretation.It examines some of the key issues discussed in the literature surrounding Art 12 – including some examples of supports for legal capacity and some of the challenges in implementing Art 12.It is argued that Art 12 provides an opportunity for critically reappraising our approach to legal capacity and upholding the CRPD’s guiding principles of equality, autonomy and participation in the crafting of any reforms.

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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.

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