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Legal capacity law reform in the Czech Republic and rights of persons with disabilities

Legal capacity law reform in the Czech Republic and rights of persons with disabilities. Conference on Autonomy and Inclusion Copenhagen, 7- 8 June 2012 Andrea Baršová Office of the Government, Department for Human Rights and Minority Protection. Czech Republic.

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Legal capacity law reform in the Czech Republic and rights of persons with disabilities

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  1. Legal capacity law reform in the Czech Republic and rights of persons with disabilities Conference on Autonomy and InclusionCopenhagen, 7- 8 June 2012 Andrea Baršová Office of the Government, Department for Human Rights and Minority Protection. Czech Republic

  2. Reasons for legal capacity law and guardianship reform • Limitation and withdrawal of legal capacity used frequently and routinely, which created several thousands of „second-class citizens“ (In 2007, there were in the Czech Republic according to the Ministry of the Interior 3.893 persons whose legal capacity was limited and 23.283 persons whose legal capacity was withdrawn). • Widespread low respect to autonomy of persons with intellectual disabilities and persons with mental health problems • Both the procedural and factual protection of rights of persons with intellectual disabilities and persons with mental health problems was insufficient • Risk of abuse

  3. The Ratification of the Convention on the Rights of Persons with Disabilities in 2009 (Art. 12, Art. 19) (Implemented by the adoption of the National plan for the creation of equal opportunities of persons with disabilities 2010 – 2014, target 5.1. new legal protection for persons with intellectual disabilities and mental health problems) The new Civil Code (10 years of work, adopted in 2012, will enter into force on 1 January 2014, follows the paradigm shift of the Convention, persons with disabilities not viewed as objects of charity,medical treatment and social protection but subjects with rights , capable of making decisions for their lives) The jurisprudence of the Constitutional Court of the Czech Republic (II.US 2630/07, 13.12.2007) Incentives and opportunities for a change

  4. Agents of change • Ministry of Justice and the team of Civil Code drafters (Prof. Karel Eliáš) • Government Committee for Persons with Disabilities (advisory body to the Government) • Civil society advocates (national and transnational): e. g. Liga lidských práv (Human Rights League), Mental Disability Advocacy Centre, National Council of Persons with Disabilities • Other stakeholders (e. g. Ombudsman, Government Council for Human Rights)

  5. New Civil Code institutes • NEW: Prior legal declaration (§§ 38-44) • NEW: Supported decision making (§§ 45-48) • NEW: Representation by a member of the household (§§ 49-54) • REFORMED: Guardianship (newly also available without limiting of legal capacity) • REFORMED: Rules for limiting legal capacity (withdrawal of legal capacity not possible anymore; limitation only in interest of the person concerned, provided that supported decision making and the representation by a member of the household are not sufficient; the judge must see the person; his / her opinion must be established )

  6. Preventive measure „A person who is expecting that he / she will not be able toexercise his / her legal capacity in the future can express his / her will that his / her affairs are carried out in particular way or by a particular person or he / she may express a wish that a particular person becomes his / her guardian“. (Covers e.g. Alzheimer, dementia cases) Prior declaration

  7. Supported decision making • Alternative to the current system of substitute decision making • Implements Art. 12, para 3 of the Convention „If a person needs support in decision making, because a mental disorder causes him / her difficulties in it, even if he / she is not limited in legal capacity, he / she can agree with a supporter on providing support; there may be more supporters“. Effective safeguard: The agreement needs to be approved by the Court ! (Art 12 para 4 of the Convention)

  8. Representation by a member of the household • Regulates legal representation of an adult person • Is limited to everyday life situations • Aims to implement Art. 19 of the Convention (Living independently and being included in the community ) „If mental health problems are an obstacle to independent exercise of legal capacity of a person, who has no other representative, he / she may be represented by his / her descendant, sibling, spouse or a partner or a person who lived with the represented person at least three years in a common household.“ Effective safeguard:The establishment of representation needs court approval. Before issuing a decision, the court makes necessary endeavours to establish the opinion of the represented person, including the way of communication that the represented chooses.

  9. Thank you for your attention! Contact: barsova@vlada.cz or +420 224002624

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