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Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms

Legal Science, Miguel Hern√°ndez University, 03202 Elche, Spain
Received: 11 October 2018 / Revised: 28 January 2019 / Accepted: 29 January 2019 / Published: 1 February 2019
(This article belongs to the Collection Disability Human Rights Law)
Full-Text   |   PDF [286 KB, uploaded 25 February 2019]

Abstract

Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention. View Full-Text
Keywords: disability; legal capacity; decision-making; substitute decision-making; supported decision-making disability; legal capacity; decision-making; substitute decision-making; supported decision-making
This is an open access article distributed under the Creative Commons Attribution License which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited (CC BY 4.0).
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Martinez-Pujalte, A. Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms. Laws 2019, 8, 4.

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