A/HRC/37/56
since it ensures that different points of view are present, reducing the risk of undue
influence. In relation to monitoring mechanisms, many existing formalized schemes turn to
a third party or independent person, who periodically contacts both the persons receiving
and providing support to enquire about how support is provided. That informal type of
monitoring is promising, as it avoids bureaucratization. When regulating safeguards,
policymakers should strike a delicate balance between ensuring respect for the will and
preferences of individuals and protecting them from abuse and undue influence, and
ensuring that their lives and choices are not overregulated.
V. The way forward
A.
Law reform
63.
States must take immediate measures to reform their legal frameworks in order to
ensure or restore the right to legal capacity of all persons with disabilities. It is important
that legislation expressly recognize that persons with disabilities have the capacity to both
hold and act upon rights and duties. Legislation must also recognize the right to access
support for the exercise of legal capacity, if desired, and ensure that support arrangements
are available, accessible, adequate and affordable. States must establish an enabling legal
framework that facilitates the creation and implementation of various supported decisionmaking schemes, including the provision of financial and technical assistance to civil
society organizations for that purpose. All substitute decision-making regimes must be
repealed.
64.
States must ensure an appropriate framework of safeguards to ensure respect for the
rights, will and preferences of individuals in the provision of support and protect them from
conflicts of interest, undue influence and abuses. When discussing crisis or emergency
situations, States must adhere to the principles and rights recognized in the Convention. In
particular, States must refrain from establishing exceptions to the full enjoyment of the
right to legal capacity of persons with disabilities at all times and from creating new
apparently disability-neutral responses that will disproportionately and adversely impact on
persons with disabilities.24
65.
States should initiate a comprehensive law review process and make changes in their
legal systems to fully implement the right to legal capacity of persons with disabilities. The
review must be comprehensive and encompass different areas of law, including family,
criminal, mental health and tort and contractual law. The concerns of third parties, such as
those regarding the duty of care, liability and the security of transactions, must be addressed
in the light of the Convention. States must be aware that many experts working in the area
of legal capacity are not familiar with the standards of the Convention and may thus require
prior information and training. The law review process should include persons from
different groups and sectors, including persons with disabilities themselves and those
providing support in practice.
B.
Policy development
66.
States should consider establishing a comprehensive system to coordinate the
effective access to supported decision-making of persons with disabilities. Such a system
must adopt a human rights-based approach, take into account equality between men and
women and the rights of the most disadvantaged and marginalized groups, and respond to
the diversity of support needs of persons with disabilities, including older persons and those
with a high level of support needs (see A/HRC/34/58, para. 58).
67.
States must consider the implementation of pilot projects on supported decisionmaking, as part of their obligation to provide persons with disabilities with access to
24
See Tina Minkowitz, “CRPD and transformative equality”, International Journal of Law in Context,
vol. 13, No. 1 (March 2017).
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