The following sets out useful advocacy and training materials on the issue of legal capacity:
1. Inclusion International, Independent But Not Alone: A Global Report on the Right to Decide, 2014 (pdf)
Article 12 of the CRPD reflects a fundamental shift in thinking: it asserts that, with support, all persons with intellectual disabilities are able to make decisions and have control in their lives. This Report by Inclusion International presents the perspectives of over 600 self-advocates, family members, disability advocates, and professionals as well as over 80 organizations from more than 40 countries worldwide. The Report’s key findings include:
Importance of investing in empowerment, self-advocacy, and strengthening the collective voice
Independence does not mean “alone”
The critical role of families in building the social connections necessary for supported decision making
The critical leadership role of family-based organizations as agents of change in the community
The Right to Decide cannot be achieved without community inclusion
The Right to Decide is concerned with more than the removal of guardianship and substitute decision making
Legal reform must be carried out concurrently with other strategies that build community support for supported decision making
2. Mental Disability Advocacy Centre (MDAC), Right to Legal Capacity in Kenya, 2014 (pdf)
The Report highlights the voices of persons with mental disabilities, outlines the need for substantial legal and social reform in this regard, and provides comprehensive recommendations to bring Kenya in line with international law (specifically with respects to the right to legal capacity guaranteed by Article 12 of the CRPD).
3. European Union Agency for Fundamental Rights, Legal capacity of persons with intellectual disabilities and persons with mental health problems, 2013 (pdf)
This Report presents the European Union Agency for Fundamental Rights’ (FRA) legal analysis of current standards and safeguards concerning the legal capacity of persons with intellectual disabilities and persons with mental health problems. It applies legal and sociological research methods to highlight discrepancies between the CRPD (ratified by 24 European Union Member States and the EU itself) and its implementation on the ground. This Report analyses current international and European legal standards and compares EU Member States’ laws in the area of legal capacity.
The Report sets out the lived experiences of a small number of interviewees who have experienced loss of legal capacity and/or other restrictions on the ability to make decisions. The socio-legal approach allows the Report to provide a comprehensive overview of this area (which is undergoing rapid and significant reform) and provide insight into how relevant laws impact the daily lives of those affected.
4. Mental Disability Advocacy Centre (MDAC), Legal Capacity in Europe, 2013 (pdf)
The purpose of the Report is to call on governments and the institutions of the European Union to enact concrete law and policy actions in order that all persons with disabilities have the right to legal capacity and access to the support necessary for exercising that right.
The Report consists of eight chapters. Chapter 1 lays out the roadmap to the Report. Chapter 2 sets out why guardianship is in dire need of reform. Chapter 3 sets out a vision for equality and inclusion as well as analyses the deficiencies of existing data on guardianship in Europe. Chapter 4 provides advice to governments in respect of legislative measures for giving practical effect to their CRPD obligations. Chapter 5 lays out some of the experiences and lessons of MDAC over the last few years as derived from its interactions with NGOs and governments in eleven European countries. Chapter 6 reviews the obligations of EU institutions under the CRPD. Chapter 7 provides a snapshot of legal capacity law reforms in 16 European jurisdictions. Chapter 8 contains references for further reading.
5. Council of Europe Commissioner for Human Rights, Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities, 2012 (pdf)
The majority of European legal capacity systems are outdated and in urgent need of reform. The presumption of legal capacity, which all adults of majority age should enjoy, has to be extended to persons with disabilities. This Issue Paper redirects focus from the deficiencies of persons with disabilities towards measures enabling and expanding the capacity of such persons to make decisions for themselves. The Issue Paper describes how Council of Europe Member States have grappled with issues such as the flaws in current guardianship systems, the automatic loss of human rights for individuals placed under guardianship regimes, and the pressing need to develop alternatives to provide persons with disabilities equal opportunities to shape their life paths. The Issue Paper outlines the applicable international human rights framework (including case law from the ECtHR) and concludes with examples of good practice for the way forward.
6. Inclusion Europe, Position Paper on Legal Capacity- Key Elements of a System for Supported Decision-Making, 2009 (pdf)
Article 12 of CRPD introduces a fundamental shift of thinking from substituted decision-making to supported decision-making. This Position Paper identifies some necessary conditions for transposing such paradigm shift into national laws. While this transposition will be different for States Parties and non-States Parties, this Position Paper sets out crucial elements without which national laws may fall short of the intentions manifested in Article 12. For supported decision-making to become a reality, States Parties are required both to consider reforming national legislation on guardianship. Further, States Parties must implement non-legal measures and safeguards such as those which promote and support self-advocacy, the selection and registration of support persons, and dismantling communication barriers. Since issues related to legal capacity are linked to the basic structure of societies, it is also important to inquire into underlying philosophical questions.