A/HRC/37/56
reaffirms the universality, indivisibility, interdependence and interrelatedness of all
human rights and fundamental freedoms, and recalls the role of society in ensuring
their full enjoyment. States have an obligation to guarantee the full enjoyment of
human rights for all persons with disabilities. The recognition of full legal capacity
and supported decision-making are necessary steps for making rights a reality,
providing persons with disabilities with the freedom and opportunity to live the lives
they value.
83.
States must pay special attention to the right to legal capacity of persons with
disabilities and champion law and policy reforms towards its full implementation. As
the present report illustrates, the standards introduced by the Convention are being
progressively implemented at the international, regional and national levels. The
review of substituted decision-making regimes and the implementation of different
forms of supported decision-making in many jurisdictions reveal a gradual but steady
paradigm shift. There is a broad range of measures that States can implement to
respect and ensure the right to legal capacity of persons with disabilities. However,
States and their leaders need to systematize those lessons and turn them into systemic,
comprehensive and sustainable policy responses.
84.
The Special Rapporteur makes the following recommendations to States with
the aim of assisting them in developing and implementing reforms towards the full
implementation of the right of legal capacity:
(a)
Recognize, in domestic legislation, the right of persons with disabilities to
legal capacity on an equal basis with others in all aspects of life, and provide them
with access to the support they may require in exercising their legal capacity;
(b)
Conduct a comprehensive law review process to abolish or revoke all
laws and regulations that directly or indirectly restrict the legal capacity of persons
with disabilities and/or allow for substituted decision-making;
(c)
Adopt an enabling policy framework to ensure the effective access of
persons with disabilities to appropriate supported decision-making arrangements, by
(a) establishing a comprehensive system to coordinate access to supported decisionmaking arrangements across the territory, including in rural and remote areas; (b)
promoting the establishment and sustained operation of community-based supported
decision-making alternatives, including the allocation of resources; (c) implementing
or promoting pilot projects and demonstration experiences; and (d) undertaking or
promoting research on supported decision-making;
(d)
Introduce safeguards in the provision of support related to the exercise
of legal capacity to guarantee respect for a person’s will and preferences at all times;
(e)
Guarantee access to effective remedies to all persons with disabilities
currently under substitute decision-making regimes and take immediate action to
restore their legal capacity, including the adoption of a moratorium on new
applications;
(f)
Promote and provide training on the right to legal capacity of persons
with disabilities for State authorities, judges, notaries, service providers, persons with
disabilities, their families and other relevant actors;
(g)
Actively involve and consult with persons with disabilities and their
representative organizations in all decision-making processes related to the
implementation of the right to legal capacity of persons with disabilities, including law
reform, policy development and research;
(h)
Progressively increase the allocation of funds to ensure access to
supported decision-making and refrain from adopting any retrogressive measures
that directly or indirectly affect the access of persons with disabilities to support;
(i)
Encourage international cooperation actors, including non-profit
organizations, to fund and carry out research, provide technical assistance on legal
capacity law reform and supported decision-making, and refrain from implementing
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