The following are relevant and 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 Convention on the Rights of Persons with Disabilities (CRPD) reflects a fundamental shift in thinking: it asserts that with support all people with intellectual disabilities are able to make decisions and have control in their lives. This global report by Inclusion International presents the perspective of over 600 people self-advocates, family members, disability advocates, and professionals, and more than 80 organizations from more than 40 countries worldwide on the right to decide. The key findings of the report include:
- Invest in empowerment, self-advocacy and strengthening a collective voice
- Independence does not mean “alone”
- Families have a critical role to play in building the social connections necessary for supported decision making
- Family based organizations must play a leadership role as agents of change in community
- The Right to Decide cannot be achieved without community inclusion
- The Right to Decide is about more than the removal of guardianship and substitute decision making
- Legal reform must go hand in hand with strategies for building community supports and supports for decision making
2. Mental Disability Advocacy Centre (MDAC), Right to Legal Capacity in Kenya, 2014 (pdf)
The report highlights the voices of people with mental disabilities themselves for the first time, outlining the need for substantial legal and social reform, and provides comprehensive recommendations to bring Kenya in line with international law, and specifically right to legal capacity guaranteed by Article 12 of the UN Convention on the Rights of Persons with Disabilities (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 uses legal and sociological research methods to highlight discrepancies between the CRPD – ratified by 24 European Union Member States and the EU itself, the first supranational government to ratify a human rights treaty – and the implementation of its standards on the ground. This report analyses the current international and European legal standards and compares EU Member States’ laws in the area of legal capacity.
The report twins this analysis with the lived experiences of a small number of interviewees regarding the loss of legal capacity and other restrictions on their ability to take decisions. This socio-legal approach provides an overview of the legal situation in an area of rapid and significant reform with an insight into how such laws impact the daily lives of those they most directly affect.
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 take concrete law and policy actions so that all people with disabilities have their right to legal capacity, and have access to supports to exercise it.
The report has 8 chapters. Chapter 1 presents a 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 and also analyzes the deficiencies of some existing data on guardianship in Europe Chapter 4 provides advice to governments about the provisions which they could consider adopting in legislation to give practical effect to the CRPD obligations. Chapter 5 lays out some of the learning which MDAC has gathered over the last few years as they have interacted in various ways with non-governmental organisations and governments in eleven European countries. Chapter 6 looks at the obligations of EU institutions under 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 bulk of European legal capacity systems are outdated and in urgent need of law reform. The assumption of legal capacity, which all adults of majority age should enjoy, has to be extended to persons with disabilities. It redirects our focus away from personal deficiencies towards putting into place supports that enable individuals to make decisions for themselves and expand their capacities to do so. This Issue Paper describes the challenges faced by Council of Europe member states in dealing with the issue. These include the flaws of current guardianship systems and procedures, the automatic loss of human rights of those placed under guardianship regimes and the pressing need to develop support alternatives giving persons with disabilities equal opportunities to shape their life paths. The paper outlines the applicable international human rights frame-work, including the relevant case-law from the European Court of Human Rights. It concludes with examples of good practice to show 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 substitute decision-making to supported decision-making of disabled people. This position paper aims to identify some of the necessary conditions for the transposition of this paradigm shift into national laws. While the concrete transposition will be rather different for countries which become States Parties to the UN Convention, depending on legal structures and traditions, this Position Paper sets out to consider 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 not only required to consider reforms of their national guardianship legislation, but it is furthermore important to implement a number of non-legal structures and measures in addition to the necessary legal instruments, for example promotion and support of self-advocacy, selection and registration of support persons, overcoming communication barriers and implementing safeguards. Since the issues related to legal capacity are linked to the basic structure of our societies, it is also important to ponder some of the underlying philosophical questions in order to develop an adequate approach to the question at hand.