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

2. 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

3. I. The aim of the legal reform

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

5. 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

6. 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?

7. 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

8. 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)

9. 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

10. II. What the reform should include

11. 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

12. 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)

13. 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

14. 3. Abolish plenary guardianship
No exceptions

15. 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

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

17. III. Examples

18. 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

19. 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

20. 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

21. 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

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

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

24. IV. The dangers of reforms

25. 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

26. 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

27. 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

28. 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

29. 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

30. V. A general proposal

31. 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

32. 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

33. 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

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