Legal Capacity of Persons with Intellectual Disabilities

Donata Pagetti Vivanti, Luisa Bosisio Fazzi

Abstract


Article 12 UNCRPD encompasses the universal recognition
of legal capacity of all persons with disabilities on an
equal basis with others, both in terms of identity and agency.
Persons with intellectual disabilities and mental health problems
could have their legal capacity deprived or restricted under
the institution of protective measures, such as guardianship.
Article 12 of the UNCRPD reframes the issue of legal
capacity in terms of giving support to persons with disabilities
that may need to take decisions, while deleting any system
which restricts their right to take decisions on the grounds of
disability. Under art.12 UNCRPD States have an obligation
to replace systems based on substituted decision-making by a
system ensuring free choice through support in decision-making,
implying the duty to take measures to provide any person
with disabilities the support needed in the expression of their
choices, not to decide for them «in their best interest».


Keywords


legal capacity; intellectual disabilities; guardianship; choice; supported decision making.

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ISSN: 2465-0315

Registration with Court of Naples n. 24, dated 21.04.2015