Equal recognition before the law
and equal capacity to act:
understanding and implementing
Article 12 of the UN Convention
on the Rights of Persons with Disabilities
EDF Position paper - October 2009
“In the development and implementation of legislation and policies to
implement the present Convention, and in other decision-making processes
concerning issues relating to persons with disabilities, States Parties shall
closely consult with and actively involve persons with disabilities, including
children with disabilities, through their representative organizations.”
Article 4, paragraph 3 of the Convention on the Rights of Persons with
Disabilities
European Disability Forum
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rue du Commerce 39-41 — B-1000 Brussels T +32-2-282.4600 F +32-2282.4609 E info@edf-feph.org W www.edf-feph.org
E uropean Disability F orum
List of contents
1. Introduction ......................................................................................................... 2
2. Concepts ............................................................................................................. 3
2.1.
“Equal recognition before the law” .................................................. 4
2.2.
“Legal capacity” .............................................................................. 4
2.3.
“Support in exercising legal capacity” ............................................. 5
2.4.
“Safeguards” ................................................................................... 5
3. Eight steps for achieving equal recognition before the law ........................... 6
3.1.
Promotion and support of self-determination by people with
disabilities.................................................................................................... 6
3.2.
Replacing traditional guardianship by a system of supported
decision-making .......................................................................................... 7
3.3.
Developing a system for supporting decision-making ..................... 7
3.4.
Selection and registration of support persons ................................. 8
3.5.
Overcoming communication barriers .............................................. 9
3.6.
Preventing and resolving conflicts between supporter and
supported person ...................................................................................... 10
3.7.
Implementing safeguards ............................................................. 10
3.8.
Using mainstream mechanisms for the protection of the best
interests of a person .................................................................................. 11
Acknowledgements .............................................................................................. 11
APPENDIX – About EDF and other documentation .......................................... 12
A.1 About EDF ............................................................................................... 12
A.3 Contact person at the EDF Secretariat: ................................................... 12
EDF October 2009, EN
Equal recognition before the law and equal capacity to act:
understanding and implementing Article 12 of the UN Convention on the
Rights of Persons with Disabilities
The document is available in English, French or in large-print upon demand
from the EDF Secretariat, and on the EDF website at: www.edf-feph.org
© Copyright European Disability Forum 2009. This document may be quoted
and reproduced, provided the source is given.
Equal recognition before the law and equal capacity to act: understanding and implementing Article 12
of the UN Convention on the Rights of Persons with Disabilities
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1. Introduction
The European Disability Forum (EDF) is the umbrella body of the European
disability movement representing the interests of 50 million disabled
Europeans and their families – a diverse group made-up of persons with
various disabilities, such physical, sensory, intellectual, psychosocial
disabilities, and people with complex and multiple disabilities.
The United Nations adopted in December 2006 the Convention on the Rights
of Persons with Disabilities (hereinafter CPRD) that entered into force on 3
May 2008. A Convention is an internationally agreed legally binding treaty,
which provides directions for the international community. It is a tool and a
driver for domestic changes. One of the core messages of the CRPD is that
persons with disabilities are not objects but human subjects deserving equal
respect and treatment.
Article 12
1. States Parties reaffirm that persons with disabilities have the right to
recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal
capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by
persons with disabilities to the support they may require in exercising their
legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of
legal capacity provide for appropriate and effective safeguards to prevent
abuse in accordance with international human rights law. Such safeguards
shall ensure that measures relating to the exercise of legal capacity respect
the rights, will and preferences of the person, are free of conflict of interest and
undue influence, are proportional and tailored to the person's circumstances,
apply for the shortest time possible and are subject to regular review by a
competent, independent and impartial authority or judicial body. The
safeguards shall be proportional to the degree to which such measures affect
the person's rights and interests.
5. Subject to the provisions of this article, States Parties shall take all
appropriate and effective measures to ensure the equal right of persons with
disabilities to own or inherit property, to control their own financial affairs and to
have equal access to bank loans, mortgages and other forms of financial
credit, and shall ensure that persons with disabilities are not arbitrarily deprived
of their property.
Article 12 of the CRPD demands equal recognition before the law for all
Equal recognition before the law and equal capacity to act: understanding and implementing Article 12
of the UN Convention on the Rights of Persons with Disabilities
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persons with disabilities and reaffirms that they all, irrespective of their kind
and degree of disability, have an inalienable right to exercise their legal
capacity on an equal basis with others in all aspects of life. The Article further
demands that people with disabilities who need support in taking decisions
shall be provided with a system of supported decision-making.
The concept of supported decision-making is new to most jurisdictions, as it
does away with the concept of traditional guardianship where the person’s
decision-making power is delegated to a legal guardian.
The new approach codified by the Convention in Article 12 also informs
interpretation of other rights of the Convention, such as Article 13 (access to
1
justice ), Article 14 (liberty and security of person), Article 16 (freedom from
exploitation, violence and abuse), Article 19 (living independently and being
included in the community), Article 22 (respect for privacy), Article 25 (health)
and many others. Overall, the new legal order established by the Convention
will require extensive reforms in national laws and practices on guardianship
and legal representation based on substitute decision-making.
This position paper aims to provide guidance to States Parties by identifying
eight key elements that should guide the implementation of Article 12 of the
Convention.
2. Concepts
No individual in any society is truly independent of the influence of others.
Social structures and hierarchies, the need for positive attention, economic
necessities, and the complexity of many financial, healthcare and personal
decisions often make non-disabled and disabled citizens dependent on others
for support in making decisions. Examples are financial consultants, medical
doctors, architects and all the other professions that provide expertise to all
citizens. Many people take decisions for themselves that are also not in their
best interest. Often they are determined by factors that are not logic-based:
commercial advertisements, the wish for social status, the preference for nice
fast cars, etc. Disabled or not, all persons have the right to make mistakes.
However, in a situation when somebody is advising another person on a
decision or exercising powers of decision-making delegated to him/her by this
person, extra due diligence must be applied to accept and acknowledge the
wishes and requests of the advised individual. Maintaining the full legal
capacity of the individuals must always be in the centre of the discourse.
Article 12 of the CRPD introduces a number of key concepts that must be
understood and interpreted in uniform fashion in order to meet the high
implementation standards of the Convention.
1
For example, the need to revise the insanity defence in criminal proceedings and replace it with
disability-neutral standards for adjudicating criminal responsibility.
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2.1.
“Equal recognition before the law”
The notion of “equal recognition before the law” is wider than “legal capacity”
(the concept that is also present in Article 12). It builds on other human rights
treaties, mainly on Article 6 of the Universal Declaration of Human Rights and
on Article 16 of the International Convent on Civil and Political Rights (ICCPR),
which states that “everyone shall have the right to recognition everywhere as a
person before the law”.
Article 12 CRPD sets the principle that all disabled people, like other citizens,
have the right to have their status and capacity recognised in the legal order.
In enables all persons to hold, exercise and benefit from equal and inalienable
rights irrespective of the nature and degree of their disability. Legal
personhood is therefore intended as a characteristic inherent to human beings.
Without this right, the individual would no longer be a person in the legal sense
2
and thus be deprived of all other rights .
2.2.
“Legal capacity”
“Legal capacity” in the sense of Article 12 is understood as evolving capacity to
exercise these equal rights and includes the capacity to act. This applies to the
legal systems of all countries for all people, irrespective of the nature or degree
of their disability or apparent need for support. Under Article 12 CRPD, legal
capacity cannot be challenged or denied based on the disability of a person.
Instead, support measures to exercise legal capacity may have to be provided
whenever needed.
The evolving nature of legal capacity is demonstrated with the following
example: all children, including those with disabilities, have an evolving legal
capacity, which at birth begins with full capacity to have rights, and evolves
into full capacity to act in adulthood. At birth, their full capacity to have rights
includes, for example, the right to life and to receive the best available
3
treatment regardless of the nature and severity of their disability . As the child
develops, so does their legal capacity, and they have the right to be provided
with age- and disability-appropriate supports to exercise it on an equal basis
with non-disabled children, including in relation to the right to bodily integrity
4
and reproductive choice . Parents and guardians have the right and the
responsibility to act in the best interests of their children while respecting the
child’s evolving legal capacity. Their automatic right to act on behalf of their
children ceases when the child reaches the legal adult age.
2
See M. Nowak, U.N. Covenant on Civil and Political Rights : CCPR Commentary, 2nd revised
edition, N.P. Engel Publisher, 2005, p.369.
3
Cf. EDF Resolution on Active Termination of Life of Infants with Impairments and on the Right to
Life, adopted at the EDF Annual General Assembly on 28 May 2006 in Rome.
4
Such as the right of children, and in particular girls, with disabilities not to undergo non-therapeutical
sterilisation before reaching the age of consent.
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2.3.
“Support in exercising legal capacity”
Supported decision-making as enshrined in Article 12 starts from the
presumption of full and equal legal capacity of all citizens, including those with
severe and profound levels of disability. The Convention provides that the
States Parties take “appropriate measures to provide access by persons with
disabilities to the support they may require in exercising their legal capacity”
(Article 12.3) and “ensure that all measures that related to the exercise of legal
capacity provide for appropriate and effective safeguards to prevent abuse”
(Article 12.4).
In accordance with the international human rights law, the respect of equal and
inalienable rights must be in the centre of the discourse on determining the
extent of support needed by the particular individual with a disability.
Therefore, the concept of incapacity must be rejected from the outset, and the
degree of assistance made proportional to the needs and abilities of the
person and vary depending on the situation (for example, they might need
support making important financial decisions, but can manage their daily tasks
independently).
Consequently, the support in exercising legal capacity must always be based
on a personal knowledge of the person (but not such as to create a conflict of
interests!), and involve trust-building activities through alternative and
augmentative communication methods.
People whose abilities to make complex decisions or to communicate their
decisions to others are either temporarily or permanently impaired may need
high levels of support in most or all areas of life. In such cases they must be
provided with such support that ensures that their legal capacity is
nevertheless enjoyed on an equal basis with others while helping them to
evaluate the implications and consequences of some of their actions or
inactions.
At present, there is no sufficient evidence and practice to determine how
supported decision-making can be ensured for this group of persons with
disabilities. States Parties as well as disability organisations are called upon to
test with urgency practical models of supported decision-making in pilot
projects to resolve this outstanding question. The crucial point is how a trusting
support relationship can be established in the cases of all people with
disabilities.
2.4.
“Safeguards”
The Convention requires that appropriate and effective safeguards be put in
place to prevent abuse of persons with disabilities in the exercise of their legal
capacity.
The text of the Convention itself provides important guidelines to be respected
by the support measures. Namely, they must be “appropriate and effective”,
“proportional and tailored to the person’s circumstances, apply for the shortest
time possible” as well as “subject to regular review by a[n...] independent
authority”. The Convention obliges States Parties to develop disability-neutral
criteria to protect persons with disabilities against abuse in the same way as all
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other citizens are protected.
In practice that means the establishment of a system for impartial assessment
of the actual need for supported decision-making in exercising legal capacity,
performed with the assistance of recognised independent experts, rigorous
determination of the extent of the supporters’ role and power, periodical reexamination of the measures adopted and possible appeal of decisions by
disabled persons or their families. Again, it must be emphasised that the
disabled person’s wishes must always be the determining factor.
Special attention must be paid to safeguarding the rights of people in need of
high level of support in all areas of life, who may be particularly vulnerable to
undue influence.
These safeguards must be clearly separate from the support network, since
they should also protect the person from exploitation or abuse by supporters.
3. Eight steps for achieving equal recognition
before the law
EDF recommends that the States Parties to the CRPD follow these eight steps
to achieve the objectives of Article 12 of the Convention, which is the full
exercise of one’s legal capacity benefiting, whenever appropriate, from the
support in decision-making.
3.1. Promotion and support of self-determination of people with
disabilities
The paradigm shift in the Convention includes the notions such as respect for
inherent dignity, individual autonomy, including the freedom to make one’s own
choices, and independence of persons. Exercise of these rights is dependent
on the promotion, establishment and maintenance of formal and informal
structures and networks of people with disabilities. Furthermore, support for
social networks (family members, carers, professional staff etc) is needed to
support, whenever needed, the full exercise of the rights enshrined in the
CRPD.
EDF therefore calls upon all States Parties:

to create favourable conditions for the establishment of networks of
persons with disabilities;
 to promote and support self-determination of all groups of persons
with disabilities in all areas of life;
 to promote independent living of persons with disabilities;
 to introduce training programmes for social networks.
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3.2. Replacing traditional guardianship by a system of supported
decision-making
Based on the principle of full legal capacity in Article 12, States Parties are
required to revise their national legal systems to develop a comprehensive
system of supported decision-making and safeguards for all people with
disabilities in need of such system, while paying special attention to the
protection of the rights of peoples with disabilities requiring high-level support
in all areas of life.
EDF therefore calls upon all States Parties:






3.3.
to review all national laws in light of Article 12 to ensure the right to
self-determination and equal recognition before the law by all
persons without discrimination on the basis of disability;
to abolish without delay all legislation and practices that lead to
legal incapacitation once a person with a disability becomes of age;
to develop and progressively introduce a system for supported
decision-making according to the core elements described below;
to secure that the elements for supported decision-making are
clearly defined and are not undermined by criteria which pretend to
be supportive but are, in fact, a disguised substitute decisionmaking;
to consider the functional approach to support in the decisionmaking. The functional approach determines the need for support
on the basis of the individual task to be performed or the specific
decision to be taken, and only allows for the least restrictive
intervention possible;
to introduce such legal safeguards that would be proportional to the
degree of the person’s need for support in any particular situation
and ensure the respect and protection of the rights, will and
preferences of the person, while respecting the rights of third
persons.
Developing a system for supporting decision-making
A registered system of supported decision-making should only be applied
when necessary – support in everyday life does not necessarily require such
measures. Volunteers, family members, friends or neighbours who act as
support persons sometimes help the individual in a number of practical things
in everyday life – from shopping to renovating the flat etc. This kind of support
does not need to be legally regulated unless there is evidence that the
individual is unhappy with the arrangement or that abuse or exploitation may
be taking place. States Parties should have systems for dealing with such
complaints.
Thus, a legally regulated system of supporters should focus on the main
decisions of legal relevance that affect the life of a disabled adult: with whom
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and where they want to live, the choice of their work or day activities, medical
decisions, financial issues, establishing possibilities for leisure activities, and
the choice of appropriate support services where needed. The performance of
the supporter should be regularly reviewed.
EDF therefore calls upon all States Parties:





3.4.
to develop legislation that provides for supported decision-making
for essential decisions of legal relevance, according to the needs
and abilities of the person, while ensuring that adequate funding
mechanisms are put in place to finance it;
to encourage and promote the creation of informal support
networks;
to ensure that whenever a legal decision on supported decisionmaking is required, it is subject to regular review;
to ensure that training for people with disabilities and their peers is
available;
to provide for a role for national independent human rights
institutions (including an independent mechanism to be set up
under Article 33.2 of the CRPD) to monitor the legal transition from
the traditional guardianship laws to the supported decision-making
system.
Selection and registration of support persons
Any system of supported decision-making must meet the needs of the
particular individual. Support persons should thus be selected by, or with the
consent of, the individual concerned. The expression of consent may take – at
its most basic – the form of a smile when a person enters the room or even in
a changed rhythm of breathing. Further practice and research is necessary on
how to handle those rare cases where even this basic communication cannot
be established.
It might be an advantage if support person knows the individual personally for
a significant period of time. In cases where the person with a disability does
not have any trust relationships, States Parties must ensure and control that
this person has the possibility to build trust relationships with support persons.
In no case should support persons be linked to a psychiatric facility, an
organisation of service providers or a governmental authority in order to avoid
conflict of interests.
Whenever needed in a particular situation, there should be the possibility to
assign several support persons to one individual. The role of the support
person may vary from providing day-to-day assistance to support in legal
representation to psychological support – the exact tasks would totally depend
on the wishes and the needs of the person with a disability. In case of a
psychosocial disability, early guidelines should be given to the support person
in advance in order to adequately deal with situations of severe crises where
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5
the person with a disability is not able to give consent or take a decision .
EDF therefore calls upon all States Parties:





3.5.
to establish criteria and selection processes for suitable support
persons;
to set up a registration system for these support persons that allows
them to be officially recognized as supporters of the disabled
individual;
to ensure an obligatory and regular training for all registered support
persons on all aspects necessary for providing adequate support
and on the rules governing supported decision-making;
to regularly review the functioning of the system of supported
decision-making to ensure that the support person acts impartially;
to inform the population (especially some target groups e.g: bank
staff, doctors, social workers, etc.) about the system of supported
decision-making and identify what they should know.
Overcoming communication barriers
Some persons with disabilities, especially those with severe and profound
intellectual and/or developmental disabilities, may find it difficult to receive,
process and send normal communication signal. Furthermore, some people
are only able to communicate their well-being through the rhythm of their
breathing or a changed muscle tonus. Others use the verbal language in a
non-functional way, or need communication devices or specific techniques to
relay their wishes.
EDF therefore calls upon all States Parties:

to recognize that all forms of communication are valid and the way
how people communicate should not be a reason to question their
decision-making ability. Communication means should be interpreted
in light of Article 2 of the CRPD;
 to provide safeguards to protect the rights and interests of those
people with disabilities whose supporter is unable, despite their best
efforts, to establish communication or understand their wishes.
Inability to establish communication must not be confused with an
inability to communicate;
 to promote model projects and research into how supported
decision-making can be implemented, when establishing
communication is difficult or impossible;
5
For some people with psychosocial disabilities, the state of incapacity can be temporary and this
should be taken into account.
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
to ensure that decisions that involve highly personal values or
controversial measures that may violate a person’s physical or
mental integrity (such as sterilisation, specific drugs, psychosurgery,
etc) can only take place with the informed and unequivocal consent
of the person concerned;
 to ensure that all people providing support for decision-making
receive a regular training in alternative and augmentative
communication, the use of communication technologies and other
communication techniques; to promote examples overcoming
communication barriers.
3.6. Preventing and resolving
supported person
conflicts
between supporter and
There will be cases where persons with disabilities take decisions that
supporters do not perceive to be in their best interest (such as giving money to
other people or organisations, the purchase of goods that the individual cannot
afford, or the cancellation of a work contract). While maintaining their right to
take decisions and make mistakes, the supporters must do their best to protect
the supported person from exploitation, abuse and personal harm.
EDF therefore calls upon all States Parties:

to oblige support persons to demonstrate that they have informed
the supported individual by all possible appropriate means about the
consequences of any important decision;
 to create a mechanism to prevent abuse, including possibilities to
ask for nullification of contracts in case the person was intentionally
exploited (see Article 16 CRPD), abused or even injured (Article 17
CRPD);
 to create administration (out-of-court) procedures that are easily
accessible for the supported person in case of a conflict with the
supporter;
 to address the question of the liability and insurance of the
supporter.
3.7.
Implementing safeguards
Article 12 of the CRPD is rather specific on the safeguards that must govern
supported decision-making. Crucially, it provides that “the safeguards shall be
proportional to the degree to which such measures affect the person’s rights
and interests”. This means that safeguards must be higher when a person has
higher support needs, or when a decision intervenes in a very essential way in
the life of a person.
EDF therefore calls upon all States Parties:
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
to ensure without delay that the safeguards stipulated in Article 12
are properly implemented in the field of supported decision-making
legislation;
 to ensure that the supported decision-making, reviewed in light of
the CRPD, becomes available for every person with disability who
needs this support.
3.8. Using mainstream mechanisms for the protection of the best
interests of a person
Supported decision-making systems are not the only measures in place to
protect the interests of a person. Consumer protection and information, legal
protection of tenants, rights of medical patients, transport users, employees,
etc. are but some of the areas where many States Parties have already
incorporated the disability angle. People with disabilities are more vulnerable
to abuse and therefore mainstream mechanisms should be made more
accessible and inclusive. It is preferable to use these mainstream mechanisms
instead of special procedures developed for the protection of the disabled
person’s interests.
EDF therefore calls upon all States Parties:

to ensure that all existing structures and legal mechanisms for the
protection of citizens’ rights in different areas of life are accessible
to people with disabilities, accommodate their needs and take their
interests into account;
 to disseminate information about the existence and work of such
systems in accessible format to all people with disabilities and their
peers.
Acknowledgements
This position paper has been prepared in consultation with all EDF
membership.
EDF would like to thank all those that have actively contributed to the drafting
of this paper and, in particular, Ingrid Körner and Geert Freyhoff of Inclusion
Europe and Evelyne Friedel and Donata Vivanti of Autism Europe.
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APPENDIX – About EDF and other documentation
A.1
About EDF
The European Disability Forum (EDF) is the European umbrella organisation
representing the interests of 65 million disabled citizens in Europe. EDF
membership includes national umbrella organisations of disabled people from
all EU/EEA countries as well as European NGOs representing the different
types of disabilities. The mission of the European Disability Forum is to ensure
disabled people full access to fundamental and human rights through their
active involvement in policy development and implementation in Europe.
A.2
Contact person at the EDF Secretariat:
Janina
Arsenjeva,
Policy
and
European
Parliamentary
Janina.arsenjeva@edf-feph.org, telephone +32 2 282 4602
officer,
More information about EDF is available on the EDF homepage at: www.edffeph.org Should you have any problems in accessing the documentation,
please contact the EDF Secretariat. (T: +32-2-282.46.00)
Equal recognition before the law and equal capacity to act: understanding and implementing Article 12
of the UN Convention on the Rights of Persons with Disabilities
European Disability Forum, October 2009
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