A/HRC/37/56 B. The normative content of article 12 of the Convention on the Rights of Persons with Disabilities 23. Article 12 of the Convention articulates the content of the right to equality before the law as it applies to persons with disabilities. Article 12 (1) reaffirms the right of persons with disabilities to be recognized as persons before the law. Article 12 (2) recognizes that persons with disabilities enjoy legal capacity on an equal basis with others in all areas of life. Article 12 (3) sets out the State obligation to provide persons with disabilities with access to support in the exercise of their legal capacity. Article 12 (4) outlines the safeguards that must be present in a system of support for the exercise of legal capacity. Finally, article 12 (5) requires States to ensure the rights of persons with disabilities with respect to financial and economic affairs, on an equal basis with others. 24. There are four primary State obligations arising from article 12. First, States must recognise universal legal capacity for all persons with disabilities, including for those requiring more intensive support. That entails adopting legislation that explicitly recognizes the capacity of persons with disabilities to create, modify or end legal relationships, as well as providing effective legal protection against any interference with such capacity. That recognition must include the exercise of the right to property, access to all forms of financial credit and the right to control one’s own financial affairs, as recognized in article 12 (5) of the Convention. States cannot restrict the legal capacity of persons with disabilities and must rather protect it against any interference in all aspects of life, including decisions related to medical treatment, living independently or financial matters. 25. The recognition of universal legal capacity for all persons with disabilities strongly influences the exercise of all other human rights and fundamental freedoms. Those rights include access to justice (art. 13 of the Convention), liberty and security of the person (art. 14), freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 15), freedom from exploitation, violence and abuse (art. 16), integrity (art. 17), nationality and liberty of movement (art. 18), living independently and being included in the community (art. 19), freedom of expression and opinion, access to information (art. 21), privacy (art. 22), marriage, family, parenthood and relationships (art. 23), health, including the right to free and informed consent (art. 25), work and employment (art. 27), adequate standard of living and social protection (art. 28), and participation in political and public life (art. 29). States must eliminate, in law and practice, all denials or restrictions of legal capacity of persons with disabilities in the exercise of these rights. 26. Second, States must abolish and prohibit all regimes of substituted decision-making. According to the Committee on the Rights of Persons with Disabilities, these regimes can be defined as systems where legal capacity is removed from a person (even if limited to a single decision) and a substitute decision maker appointed by a third party takes decisions based on what he or she considers is in the best interests of the person concerned, even if that goes against the will of the latter. 8 They include plenary and partial guardianship, judicial interdiction, curatorship, conservatorship and mental health laws that allow involuntary treatment and commitment. All forms of substitute decision-making are prohibited under the Convention, including those based on the assessment of mental capacity skills.9 27. Third, States must develop supported decision-making arrangements of varying types and intensity, including informal and formal support arrangements. 10 Such arrangements include, for example, support networks, support agreements, peer and selfsupport groups, support for self-advocacy, independent advocacy and advance directives. Contrary to substitute decision-making regimes, under a supported decision-making arrangement, legal capacity is never removed or restricted; a supporter cannot be appointed by a third party against the will of the person concerned; and support must be provided based on the will and preferences of the individual. The right to legal capacity is not 8 9 10 Committee on the Rights of Persons with Disabilities, general comment No. 1, para. 27. Ibid., para. 15. Ibid., para. 17. 7