The CRPD and guardianship reform in Central and Eastern Europe Jan Fiala Harvard Law School Project on Disability (HPOD) Director, Central Eastern Europe Program

The CRPD and guardianship reform in Central and Eastern Europe 1. The aim of the legal reform 2. What the reform should include 3. Examples: Hungary (2009), the Czech Republic, Slovakia 4. The dangers of reforms 5. A general proposal

I. The aim of the legal reform

1. The ultimate goal: CRPD Article 12: …persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

2. The current situation in CEE Restrictive guardianship laws Plenary guardianship No respect to the decisions of PWD No control over guardians Medically determined incapacitations

3. The problem Huge gap between practice and the CRPD The law is partly to blame, but the problem is wider, affecting social structures Can we “solve” the problem only by changing the laws?

4. The process If the problems are deeply embedded social patterns, a new law in itself cannot replace them overnight The goal is therefore not to adopt “CRPD-compliant legislation” – we need CRPD-compliant practice, and no law can create that

5. The aim of legal reform Introduce the “support” paradigm into law, give it legal recognition Eliminate as much as possible of the “substitution” paradigm Develop procedure that strengthen SDM in practice in various areas (financial, medical, social services, property transactions)

5. The aim of legal reform Adopt institutions, which shift decision-making practices toward support Challenge the existing paradigm – force opponents to rethink and justify why we need guardianship Summary: adopt a system, which gradually phases out guardianship and replaces it by various forms of support

II. What the reform should include

The content of the reform 1. Recognize SDM as a legal institution 2. Recognize other alternatives to guardianship 3. Abolish plenary guardianship 4. Improve partial guardianship to a co-decision-making procedure 5. Introduce the missing safeguards

1. Recognize SDM as a legal institution Some countries: only the principle of support Others: a fully developed legal institution Safeguards Making it widely available Recognize it in practice in different areas of legal transactions (if needed, by law)

2. Recognize other alternatives to guardianship Advance directives Lasting powers of attorney Representation agreements Specific decision-making procedures in healthcare, family matters, etc. Require accessible decision-making structures

3. Abolish plenary guardianship No exceptions

4. Improve partial guardianship to a co-decision-making procedure Strengthen the position of the person under guardianship – his choices and decisions should not be irrelevant There should be safeguards against the guardian’s decisions Abuses typical for your country should be eliminated

5. Introduce the missing safeguards Accessible court proceedings Nature of expert assessment Effective legal representation The principle of proportionality in practice Control over guardians

III. Examples

Hungary – 2009 Civil Code Law adopted by Parliament, but never entered into force Introduced SDM and advance directives as fully developed legal institutions Abolished plenary guardianship

Hungary – 2009 Civil Code Partial guardianship: remained, but co-decision with recourse to guardianship office and courts Principle of proportionality stressed Procedures for preventing immediate harm, and decision-making on behalf of persons unable to communicate

Czech Republic Law adopted by government, introduced to Parliament Introduced SDM, advance directives and “representation by member of the household” as fully developed legal institutions Abolished plenary guardianship

Czech Republic Partial guardianship: remained, but differentiation between various decisions Guardianship council created to supervise the guardian and provide an easily accessible remedy for person under guardianship Recourse to courts against guardian and guardianship council

Slovakia Proposal debated in the Ministry of Justice Introduces SDM and advance directives as fully developed legal institutions Abolishes plenary and partial guardianship

Slovakia Instead of partial guardianship: administrator-ship It does not affect the person’s legal capacity Similar to the German Betreung

IV. The dangers of reforms

1. SDM A delicate institution at the beginning Judges should see it as a real alternative – it should provide the necessary safeguards However, it should not be restrictive, otherwise it is just guardianship with a different name

1. SDM If the law does not find the right balance, SDM will either not spread in practice, or will become a new form of guardianship

2. Proportionality The legislation should overall ensure the development of SDM, and disappearance of guardianship It is a question for the local context how to support processes that make SDM more accepted and accessible

3. The bad example – Hungary 2011 Keeping plenary guardianship Partial guardianship does not have safeguards – maintaining total control of guardians over decisions No control over guardians, no safeguard against their decisions

3. The bad example – Hungary 2011 SDM – supporter appointed by the guardianship authority without the supported person’s consent Advance directive – enter into force only if the person is incapacitated: not an alternative to guardianship, but its modification

V. A general proposal

No blueprint, but: Introduce SDM with safeguards Educate judges, lawyers, public servants, families and PWD about it Introduce other alternatives to guardianship and specific procedures that support decision-making Make them widely accessible

No blueprint, but: Abolish plenary guardianship Think about and justify what kind of situations (if any) you want to use guardianship for Retain guardianship in a limited way, in a form of a co-decision-making procedure Introduce safeguards to face your practical problems with guardianship

The CRPD and guardianship reform in Central and Eastern Europe 1. The aim of the legal reform 2. What the reform should include 3. Examples: Hungary (2009), the Czech Republic, Slovakia 4. The dangers of reforms 5. A general proposal

The CRPD and guardianship reform in Central and Eastern Europe Thank you for your attention! Jan Fiala jfiala@sjd.law.harvard.edu Harvard Law School Project on Disability (HPOD) Director, Central Eastern Europe Program