Are We Closing the Gap? Reforms to Legal Capacity in Latin America in Light of the Convention on the Rights of Persons with Disabilities.

Date01 January 2023
AuthorMarshall, Pablo

TABLE OF CONTENTS I. INTRODUCTION 120 II. THE REFORM PROCESSES: ORIGIN AND DEVELOPMENT 124 A. Formal Aspects 125 B. Actors 128 C. The Role of the CRPD 132 D. The Role of Comparative Law 135 E. Main Themes of Discussion 136 F. Scope 138 III. SYSTEMS OF SUPPORT 140 A. Legal Capacity before the Reforms 140 B. Recognition of Legal Capacity 142 C. Support for the Exercise of Legal Capacity 143 1. How Are Support Measures Defined? 143 2. Who Serves as Support? 145 3. Who Can Receive Support? 146 4. Support Intensity and Representation 147 D. Procedural Aspects: The Judicial Constitution of Supports 149 1. Principles 149 2. Competent Court 149 3. Procedure and Standing 150 4. Interdisciplinarity 151 5. Participation of Persons with Disabilities 152 E. Forms of the Constitution of Extrajudicial Support 154 1. Support Agreements 154 2. Advance Directives 155 F. Safeguards 156 IV. TRANSITION REGIME 159 A. Disability Cases Already Declared 159 B. Pending Cases 160 C. Notifications 161 V. IMPLEMENTATION OP THE REFORM 161 A. Bodies in Charge of Implementing and Supervising the Reforms 162 B. Training 163 C. Public Record of Support 166 VI. COMPLIANCE WITH THE CRPD STANDARDS 167 A. Legal Personality under Equal Conditions 167 B. Legal Capacity under Equal Conditions 167 C. Support System 169 D. Safeguards 171 VII. EXPLORING THE WEAKNESS OF THE REFORMS 172 VIII. CONCLUSION 175 I. INTRODUCTION

The Convention on the Rights of Persons with Disabilities (CRPD) is one of the international human rights instruments that has received the most significant number of ratifications immediately after being opened for subscription. The convention was adopted in December 2006, opened for ratification in March 2007, and entered into force in May 2008. As of 2022, 185 states have ratified it. (1) Article 1 of the CRPD provides, "[t]he purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity." (2) It understands persons with disabilities as including all "those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others." (3) Article 4 of the CRPD establishes the obligation of the states parties to "adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention" and "all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities." (4) Regarding those articles, numerous legislative reforms have been adopted worldwide to account for the requirements of the CRPD to promote, protect, and ensure the rights of persons with disabilities in various areas of life. (5)

Article 12 of the CRPD establishes the equal recognition of persons with disabilities before the law. This obligation includes recognizing their legal personality and capacity on equal terms with others in all aspects of life. The Committee on the Rights of Persons with Disabilities (the Committee), in its General Comment No. 1 (GCl), specifies that legal capacity includes (1) conceiving persons with disabilities as holders of rights and (2) granting them the capacity to act regarding those rights. (6) For people with disabilities to exercise their legal capacity under equal conditions, the states parties must adopt appropriate measures to provide them with the support necessary to make decisions that have legal effects. (7) This support system must include adequate and effective safeguards to guarantee respect for the rights, wills, and preferences of persons with disabilities and prevent their abuses. (8) To comply with these provisions, the CRPD urges the states parties to examine their internal legislation and take measures to develop laws and policies that replace regimes based on substituted decision-making by a system of supported decisionmaking. (9) Over the last decade, the CRPD has promoted a series of legislative reforms to legal capacity of the states with the common objective of advancing the adoption of regimes compatible with the new paradigm entrenched in the CRPD.

In the opinion of the Committee, Article 12 of the CRPD is incompatible with any substituted decision-making regime. (10) Substituted decision-making implies that a third person takes--in a general or particular way, permanently or temporarily--the decisions that correspond to, and impact persons with, disabilities. Instead, according to Article 12 of the CRPD, the states parties must adopt "the pertinent measures to provide access to persons with disabilities to the support they may need in exercising their legal capacity." (11) It is definitive: jurisdictions are expected to advance from a substituted decisionmaking model towards one of decision-making support. GC1 has produced great controversy in common law jurisdictions and elsewhere, resulting in abundant academic literature. This may be due to several reasons, including that Article 12 constitutes a crucial element for the treatment of persons with disabilities in the CRPD because (1) it incorporates tremendously innovative and previously unknown ideas into the legal field, such as decision-making support; (2) it has an impact on certain sensitive issues, such as involuntary treatment and hospitalization, which, as much as they can save a person's life, constitute a historical case of abusive treatment and torture against psychiatric patients where the status in which they have been left has not been cleared by GC1; and (3) the states parties have shown a lack of will and political and legal objections to make their domestic law compatible with the obligations arising from the Committee's interpretation of Article 12. (12)

Despite a push to adopt CRPD standards, governments in common law jurisdictions maintain a regime where an individual's decisionmaking capacity is functionally evaluated and may be substituted if found inadequate. In Latin America, however, the attitude of several governments has been (at least in theory) quite deferential to the Committee, which promotes the replacement of both the guardianship regime and the functional models of capacity used to evaluate decisionmaking capacity. Thus, over the last ten years in this region, reforms to legal capacity have been carried out to implement the support model for decision-making. In some cases, at least partially, they have ended with the institution of guardianship.

This Article describes the reforms to legal capacity carried out in four Latin American jurisdictions: Costa Rica, Argentina, Peru, and Colombia. These are the first Latin American countries to reform their domestic legislation on legal capacity, particularly concerning the adaptation of it to CRPD standards. Our objective is to make known to the English-speaking academic community, with some degree of detail, the legislative developments conducted in this region, serving as a reference for other countries that are considering the implementation of reforms in this area of law.

The Article aims to provide a detailed account of each of the reforms, understood as a process of transforming the legal capacity regime. This implies an analysis of the new regulations from a substantive and procedural perspective and means understanding the reforms from the implementation perspective as an attempt to put into practice a new model of legal capacity. Although a critical examination is relevant to identify the successes and failures of the reforms and account for the aspects that are susceptible to improvement, the scope of the review makes it sensitive to maintain the focus on the description of the reforms. However, this description also includes identifying problems that arose and were debated during the reforms.

We focus on five principal dimensions of the new legislation and reform process. Part I describes relevant aspects of the reform process (formal aspects, relevant actors, the role of the CRPD in its gestation and development, and the most controversial elements in the discussion). Part II describes the main structural features of the support system implemented by the reforms (recognition of legal capacity, substantive and procedural aspects of the support, and safeguards). Part III describes the transitional aspects of the reforms, and Part IV analyses three of the main measures to implement the reforms. Part V examines the adaptation of the reforms to the standards of the CRPD, and Part VI makes a preliminary analysis of the weaknesses of the reforms.

This research is fundamentally descriptive and aims to serve as input for other research on legal capacity. This Article examines the legislative reforms on legal capacity, including the reform projects, the legislative discussion, and the legal texts approved concerning other national legislation and administrative regulations. Additionally, it examines academic papers and information from civil society addressing the reforms. Finally, to identify aspects that could not be found in the documentary analysis, mainly linked to the reform process and its implementation, we conducted semi-structured interviews in 2021 with relevant actors concerning the reforms in each of the four countries. The interviewees were provided with information about our research and agreed to be interviewed by the research team.


    This Part describes the reforms to the selected jurisdictions from the perspective of their origin and development. The following aspects of the reforms will be reviewed: (1) the formal characteristics; (2) the most relevant actors involved, with particular emphasis on the participation of organizations of...

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