Restoring Voice to People

1. Restoring Voice to People Legal Capacity & Article 12 of the UNCRPD Anna Arstein-Kerslake NUI Galway Brussels Team Meeting November 25, 2011

2. Clarify definition of Legal Capacity & Article 12 • Identify best practices in supported decision-making models • Identify best practices in law reform • Provide recommendations for reform of legal capacity law Goals

3. What is legal capacity? • Capacity to act (enter into K, marriage, vote, etc.) • Capacity to be a holder of rights • Who has legal capacity? • Personhood • Historical denial of legal capacity (women, 3/5 of a person, etc.) • Debunking the fallacy of rationality • e.g. capacity to consent to sexual relations Defining Legal Capacity

4. What does Article 12 call for? • Equal recognition under the law • Recognition of legal capacity • Replacement of substituted decision-making systems with supported decision-making systems • Ensuring there are appropriate safeguards and utilization of the least restrictive alternative • The integration of 1st and 2nd generation rights in Article 12 Clarifying Article 12

5. Bad Practices in Legal Capacity Law • Status-Based Assessments • Functional Assessments • Outcome-Based Assessments Good Practices in Supported Decision-Making • British Columbia, Canada • Representation Agreements • Germany and Israel • Elimination of determinations of ‘incapacity’ • Sweden • Personal Ombudspersons Good and Bad Practices in Legal Capacity Law

6. Irish Lunacy Act 1871 • Indian National Disability Trust Act • UK Mental Capacity Act 2005 • US Guardianship Law Lessons in Reform of Legal Capacity Law

7. Review of literature/legislation/case law • Qualitative interviews with self-advocates and professionals in the field • British Columbia, Canada • Victoria, Australia • Sweden • Germany • Involvement with law reform • India • Ireland • US Methodology