Supported decision-making

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Legal Capacity, Personhood and Supported Decision Making

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Presentation transcript:

Supported decision-making Antonio-Luis Martínez-Pujalte EASPD Annual Conference Barcelona, 4-5 October 2018

ART. 12 OF THE CONVENTION Three basic principles should inspire the statutory regulation of legal capacity according to Article 12: Legal systems must recognize the full capacity of people with disabilities to exercise their rights, thus excluding any institutions such as traditional guardianship involving substitute decision-making for people with disabilities. Legal systems must establish the support mechanisms necessary for persons with disabilities to exercise their legal capacity, always based on respect for their will and preferences. Legal systems must establish measures and provide for appropriate safeguards to ensure that support mechanisms effectively respect the rights, will and preferences of the person supported and to prevent any abuse.

IRELAND Assisted decision-making: - The individual can adopt the necessary provisions on the exercise of his or her capacity: assisted decision-making agreement, co-decision-making agreement, enduring powers of attorney. Assisted decision-making: a) help the person supported to obtain the information relevant to the decisions; b) advise him or her, explaining the relevant information and the circumstances that affect the decision; c) ascertain the will and preferences of the person supported on the subject matter of the decision and help him or her to communicate them; d) help him or her to make and express the decision; and e) endeavour to ensure that the decision is implemented.  Co-decision-making: The co-decision-maker must also give his or her consent to the decision of the supported person.

PERU A very wide and flexible model of support for the exercise of legal capacity. It is the individual requiring support who establishes it. The supports are defined as “forms of assistance freely chosen by a person of age to facilitate the exercise of their rights, including support in communication or in understanding legal acts and their effects, and the manifestation and interpretation of the will of the supported person”. Exceptionally: judicial provision of support.

FINAL REMARKS  Some lessons: Change of paradigm: from “best interests” to “will and preferences”. Supported decision-making: provide assistance during the decision-making process, to enable a person to make a free and fully informed decision. Safeguards.