Do appropriate and effective safeguards exist for all processes relating to legal capacity and support in exercising legal capacity?

Explanation

Safeguards must be present in a system of support in the exercise of legal capacity. The primary purpose of these safeguards must be to ensure the respect of the person’s rights, will and preferences. In order to accomplish this, the safeguards must provide protection from abuse on an equal basis with others.

In detail

Summary

46% of respondents replied safeguards exist but not for all processes or are not appropriate or effective, while 33% stated that safeguards do not exist. The main issues include:

  • The Informal/3rd sector provision of appropriate safeguards is organised and provided by NGOs, civil society- not legally official
  • If safeguards are available, they may not be thoroughly implemented, and guardianship is rarely monitored
  • Inadequate amount of attorneys or advocates to assist individuals
  • People with intellectual disabilities are often at risk of having their rights violated. The person’s wills and more generally independent living is not respected
Comments

“As there are very few research models for support decisions making safeguards still being developed. Government interpret these applying to substituted decision making (Guardianship) however no ongoing monitoring of individual guardians exist and abuse is only address after it becomes known.”

“There are no existing safeguards from the government. But recently National Human Rights  Commission has worked to prepare anti discrimination law where DPOs are actively participated”.(Salma Mahbub- Protibonhi Nagarik Shangathaner Parishad (PNSP)- Bangladesh)

CRPD Article

Article 12: Equal recognition before the law

“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”

(UN Convention on the Rights of Persons with Disabilities)

Article 19- Living independently and being included in the community

“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

(UN Convention on the Rights of Persons with Disabilities)