Maximizing Decision-making capabilities for the exercise of legal capacity

1. Maximizing Decision-making capabilities for the exercise of legal capacity Presentation to Conference on Disability and Legal Capacity under the CRPD Harvard Law School – February 20 2010 By Michael Bach Canadian Association for Community Living

2. Legal Capacity: Recognition of a Person’s Right to Make Health Care Decisions CRPD Articles: 15, 25, 26 Financial/Property Decisions (purchase, sale, credit, investment, will)CRPD Articles: 12(5),28 Personal Life Decisions (where to live, relationships, participation, access, employment, mobility and supports)CRPD Articles: 13, 14, 15, 18, 19, 20, 23, 25, 26, 27, 28, 29, 30

3. To whom does this recognition of legal capacity get ascribed? On what basis? An adult/individual of age of majority – to whom, at a minimum, personal will can reasonably be ascribed by at least one other person.

4. Types of Decision Making Status • community Autonomous Supported Co-Decision- Making Facilitated

5. To achieve ‘equal’ recognition before the law requires a just allocation of decision-making status. So… How do we decide who gets what decision-making status?

6. How do we allocate decision-making status ? By maximizing each person’s decision-making ‘capability’ to carry out the ‘function’ of making personal decisions that give effect to, develop and constitute one’s personhood.

7. Sen: ‘Functionings’ and ‘Capabilities’ • Functionings – the beings and doings of a person – like the doing of making decisions • Capabilities – the effectively possible – a capability is not an individual skill, but a possibility created through inputs of goods and services, social relationships, environmental context, etc.

8. ‘Tests’ of whether reasonable effort has been made to maximize decision-making capability • Autonomous – With decision-making assistance and reasonable accommodation on the part of other parties, are the other parties able to understand the person’s will/intention sufficient to enter an agreement? • Supported – If not, is the person able to appoint a trusted representative/network to assist in expressing will/making decisions?

9. ‘Tests’ of whether reasonable effort has been made to maximize decision-making capability • Co-Decision-Making – If not, would another person, with supports and by providing accommodations, be able to discern a person’s will and intention sufficient to assist them in making decisions?

10. ‘Tests’ of whether reasonable effort have been made to maximize decision-making capability 4. Facilitated – If not, as a last resort, appoint a facilitator – time-limited, decision-specific to facilitate making of needed decisions, with ongoing duty to invest in creation of decision-making capabilities – assistance, enabling relationships with others who commit to assisting a person in developing and expressing his/her will, etc.

11. Autonomous decision-making status Supports & Accommodation not yet feasible Supports & Accommodationsufficient Supported decision-making status Supports & Accommodation not yet feasible Maximizing D-M Capability to exercise Legal Capacity Supports & Accommodation sufficient Co-decision-making status Supports & Accommodation not yet feasible Supports & Accommodation sufficient Facilitated decision-making