Full Description
This book addresses one of the most controversial questions in contemporary human rights law: how can persons with severe cognitive disabilities make their own decisions?
Historically, vulnerable persons have been considered incapable, and guardians were appointed to represent their interests, which has led to serious abuses. The Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006, requires that they receive support to make their own decisions. However, governments claim it is impossible to fully implement this international requirement.
This book tackles the issue of decision-making from both a legal and theoretical perspective. It explores how supported decision-making could incorporate safeguards to protect the vital interests of vulnerable persons in order to present a viable legal alternative to guardianship. It accepts that some persons' abilities are very limited, but contends that guardianship is not the appropriate response, even in such cases. Instead, the book presents a unique Modified Support Framework, which can incorporate all persons with disabilities, fulfilling the goals of the CRPD.
Contents
Preface
Acknowledgements
Table of Cases
Table of Statutes
Table of International Law Sources
1. Introduction
1.1 The Existing Landscape of Legal Capacity Law
1.2 Recent Challenges to Guardianship
1.3 The Structure of This Book
1.4 Note on Terminology
2. Legal Capacity
2.1 What is Legal Capacity?
2.2 A Historical Overview
2.3 Legal Capacity as a Human Right
2.3.1 Violations of Procedural Rights
2.3.2 Violations of Other Substantive Rights
2.3.3 Guardianship as Such
2.4 Implications for the Convention on the Rights of Persons with Disabilities
3. Interpreting Article 12 of the CRPD
3.1 The Conflicting Views on Interpreting Article 12
3.1.1 The Absolutist Position and the Constricted Position
3.1.2 Strong and Weak Points
3.1.2.1 Support to Persons with Severe Disabilities
3.1.2.2 The Role of Mental Capacity
3.1.2.3 The CPRD's text
3.1.3 Common ground
3.2 The Text of Article 12 - and its Implications
3.2.1 The Consensual Aspect
3.2.2 The Suprapositive Aspect
3.2.3 The Institutional Aspect
3.5 Conclusion - Does Article 12 Resolve the Debate?
4. The Inherent Features of Guardianship
4.1 Is the Aim of Substitute Decision-making Ever Legitimate?
4.2 The Assumptions behind Guardianship
4.3 Different Legal Approaches to Guardianship
4.2.1 The Status Approach
4.2.2 The Quasi-Status Approach
4.2.3 The Outcome Approach
4.2.4 The Functional Approach
4.2.5 The Quasi-functional Approach
4.4 Evaluating the Different Approaches
4.3.1 Costs
4.4.2 Legal Certainty
4.4.3 Protection from Abuse
4.4.4 Ease of Administration and Oversight
4.4.5 Evaluation of the Above Approaches
5. The Alternative: Supported Decision-Making
5.1 What is Supported Decision-Making?
5.1.1 The Emergence of Supported Decision-Making in International Law
5.1.2 Supported Decision-Making in Domestic Laws
5.1.3 The Ideal and Existing Models of Supported Decision-Making
5.2 The Psychological Assumptions behind Supported Decision-Making
5.2.1 Interdependent Decision-Making
5.2.2 The Psychological Basis of Supported Decision-Making
5.2.2.1 Abstract Thinking and Context
5.2.2.2 Logical/Linguistic Intelligence
5.2.2.3 No Support
5.2.2.4 Legal and Clinical Incompetence
5.3 Forms of Supported Decision-Making
5.3.1 Supported Decision-Making as the Natural Way of Making Decisions
5.3.2 Supported Decision-Making as a Principle
5.3.3 Supported Decision-Making as an Alternative to Guardianship
6. Supported Decision-Making as a Legal Institution
6.1 Ideal v Legal Forms of Supported Decision-Making
6.2 The Functions of the Legal Regulation of Supported Decision-Making
6.2.1 The Guardian's Right to be Present and to Access Information
6.2.2 The Role of Supporters
6.2.3 Legal Certainty
6.2.4 Protection from Harmful Decisions
6.2.4.1 Abuse by Others
6.2.4.2 Abuse by Self
6.2.4.3 Abuse by the Supporter
6.3 Comparing Guardianship and Supported Decision-Making
6.3.1 Restrictiveness
6.3.2 Flexibility
6.3.3 The Pedagogic Effect
6.3.4 The Expressive Function
6.3.5 Ease of Transacting
6.3.6 Protection from Harmful Decisions
6.4 Conclusion
7. The Case of Persons with High Support Needs
7.1 Existing Solutions and their Shortcomings
7.1.1 The Support Only Framework - the Complete Abolition of Guardianship
7.1.2 The Some Guardianship Framework - the Need to Make Substituted Decisions
7.1.3 Common Ground and Divergence between the Two Positions
7.2 The Modified Support Framework - a Proposal for a Third Option
7.2.1 Who Are 'Persons with High Support Needs' from a Legal Perspective?
7.2.2 The Modified Support Framework in Practice
7.2.3 Comparing the Three Models
7.3 Safeguards Ensuring that Support Does Not Become Substitution
7.4 The equality of Persons with High Support Needs
8. Conclusion
Bibliography
