Description

Does the law provide for the possibility of partial guardianship?
Guardianship should protect and assist persons with disabilities. Guardianship should never remove freedom of choice unnecessarily. The signal paradigm shift embodied in Article 12 is from ‘substituted decision-making’ to ‘supported decision-making.’ Plenary (that is, covering all delegable legal rights and powers), as opposed to partial, guardianship, for example, removes any freedom of choice.

Relates to Convention Article:

  • No.12, Equal recognition before the law

In detail

Brief explanation of the question

Article 12 of CRPD prescribes that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that “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”. This is one of the most heavily discussed articles in the Convention. Many experts and commentaries note a paradigm shift from the principle of “substituted decision-making” to “supported decision-making”. The consensus among experts is that implementation of this change has wide-ranging consequences for many established systems of “disempowerment” and “guardianship”. However, experts warn that many states are not aware of this broad scope, believing that the established systems already fulfil the requirements of Article 12.

Guardianship should only ever protect and assist persons with disabilities. Limited partial guardianship permits temporary limitation of choice or guardianship only in certain matters; for example, of property. The question is, therefore, formulated simply to ascertain whether this possibility exists, without addressing how this option is implemented in practice.

Summary of results

From the picture in the map it is possible to clearly see that this question pictures positively the European area with only 3 red light in that zone. Nevertheless this question has been one of the three that received the most rate of no answer from the respondents (14 countries did not give any traffic light to the question).

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