1. Analysis of Peruvian Reform
Tina Minkowitz
Center for the Human Rights of Users and Survivors of Psychiatry

2. Core standards of Art 12.2 / GC1
Recognition of legal capacity of PWD on an equal basis with all other persons, including the capacity to act
Yes, except people with addictions; prodigals, poor managers also disproportionately PWD; people in coma not brought fully under inclusive framework
Inclusive approach to manifestation of will by PWD (both explicit and tacit)
Provides for responsibility of person for own legal acts taken with support
Elimination of all restriction/deprivation of legal capacity using status, functional or outcome-based approaches
Disability and discernment criteria eliminated
Guardianship eliminated for PWD; support does not entail representation unless so designated
Addresses all aspects of life
Repeals provision allowing guardian to place person in institution; restrictions on marriage, parenting, testamentary capacity, financial transactions
Health law still contains provision for nonconsensual treatment in medical emergencies and psychosocial crisis situations; also involuntary mental health treatment for people with addictions
Art 12.2, GC1 paras 12-14
GC1 para 15
Arts 12.2, 25, 13, 12.5, 23, 29; GC1 paras 8, 29(f), 31, 38-42, 48-49, etc.
Corollary to the capacity to create legal relationships (GC1 para 12)

3. Core standards of Art 12.3 / GC1
Access to support is provided to all persons
Anyone of legal age (18+) can designate supports before notary or court; accessibility and accommodations required for support proceedings
Regulations should ensure no barrier of cost
Support includes formal and informal support arrangements; universal design/accessibility; diverse forms of communication; advance planning
Support is defined according to its purpose – to facilitate the exercise of rights, including support in communication, understanding nature/consequences of legal acts, expression and interpretation of will
Accessibility and accommodations required for legal proceedings and notaries
Option to designate future supports
Reform is focused on formal supports, may be need to investigate/promote informal support options
All forms of support, including most intensive, are based on will and preferences of the person and not ‘best interests’
Person designates form, identity, scope, duration and number of supports
In exceptional circumstances when no expression of will is obtained and support is necessary for exercise and protection of rights, court is empowered to apply best interpretation of will and preferences to designate supports
GC1 para 29(a), (c), (e)
GC1 para 13, 25
GC1 paras 13, 26, 27 (see corrigendum), 29(b)

4. Core standards of Art. 12.3 / GC1 (cont.)
Obligation to facilitate creation of support for those who may be isolated and not connected to naturally occurring networks
Should be addressed in regulations
GC1 para 29(d)

5. Core standards of Art. 12.4 / GC1
Safeguards are present to ensure respect for the person’s rights, will and preferences in the exercise of legal capacity; including protection against undue influence (shown by signs of fear, aggression, manipulation) while recognizing right to take risks and make mistakes
Person designates own safeguards (or court in exceptional ‘best interpretation’ procedure), only required safeguard is review of supports at specified time
Need for access to justice/complaints mechanism
Formal supports are registered and mechanism exists for third parties to verify their identity and challenge action believed to be not in accordance with will and preferences of person concerned, while not over-regulating the lives of PWD
Supports are registered before notary or court
Complaints mechanism should also be available for third parties in the case of intensive supports that entail representation according to the person’s designation or that of court
Art 12.4, GC
GC1 29 chapeau and (d)