Capacity and Competence - Introduction
The ability of a person to make decisions about his or her life, whether about day to day decisions such as what to wear or eat, or more substantial decisions such as where to live and whether to consent to medical treatment, is referred to as the person's capacity to make such decisions.
Scope of legal capacity
In many cases the ability of a person to make a particular decision will have legal consequences for that person and/or other people, for example, getting married, agreeing to medical treatment, becoming employed or buying property. In such cases the person must have the legal capacity to make such decisions. This means, that the person:
- Has the right to make a particular decision, and
- Is able to exercise the right to make this decision
For example, the right to marry is usually dependent on the person having reached a certain age (and there not being any other legal restrictions, such as the person already being married to someone else). The question whether the person is able to exercise his or her right to marry will depend on whether the person has the capacity to make the decision to marry.
Article 12 UN Convention on the Rights of Persons with Disabilities
The process of determining whether a person has the capacity to make the decision in question will differ from country to country and will also depend on the type of decision being considered. However in light of Article 12 of the UN Convention on the Rights of Persons with Disabilities, the following key principles should underpin legislation concerning legal capacity:
- Presumption of legal capacity: persons with disabilities are recognized as having the right to enjoy legal capacity ‘on an equal basis with others in all aspects of life';
- A ‘functional test' for assessing capacity: this means that the person's ability to decide is assessed in relation to that particular decision at that particular time;
- Supported-decision making: people should be provided with support to help them make their own decisions;
- Safeguards from abuse: appropriate and effective safeguards should be put in place for people who need support in decision-making.
Guardianship - the arbitrary removal of legal capacity
Article 12 provides further support for the reform of the guardianship system that is prevalent in Central and Eastern Europe and the former Soviet Union. In this region, many people with intellectual disabilities and/or mental health problems are placed under guardianship, having been deemed to lack the capacity to make decisions for themselves. A guardian is appointed to make decisions on their behalf.
Plenary(full) guardianship removes the legal capacity of the person concerned so that they are prohibited from making any decisions of a legal nature, such as entering into employment, getting married or opening a bank account. In addition,In the past the lack of proper safeguards for guardianship has led to widespread abuse. For example, individuals subject to plenary guardianship can be placed in a social care institution by their guardian without their consent, for life, and without the right of appeal.
Further information:
Legal opinion on Article 12 of the CRPD
Key Elements of a System for Supported Decision Making (2008), Inclusion Europe
Council of Europe, Recommendation No R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults