A/HRC/30/43
including training, consent to medical care and regulation of care delivery, in home,
residential, institutional, long-term and palliative care.
B.
1.
Autonomy
Definition and scope
44.
Autonomy refers to the principle or right of individuals or groups of individuals to
determine their own rules and preferences. It includes the freedom and capacity to make
one’s own decisions and the legal capacity to exercise those decisions. Autonomy
encompasses three main elements: an individual aspect, which includes the capacity to
make decisions; an economic and financial aspect, understood as self-sufficiency and the
ability to generate and receive income; and a societal aspect, which means the existence of
communities and environments that are age-sensitive and age-friendly in order to ensure
that older persons are able to decide or act for themselves.
45.
The full enjoyment of autonomy has broad scope, including not only the right to
equal recognition before the law, legal capacity, dignity, self-determination, empowerment
and decision-making, but also the right to choose where to live, the right to work, the right
to vote and to the right to participate actively in all spheres of society. The denial or
restriction of legal capacity directly impacts the autonomy of older persons, as they will no
longer be able to exercise these other rights, including making decisions regarding civil,
commercial, administrative, judicial or health-related matters concerning their well-being.
46.
Autonomy and independence are mutually reinforcing and are often used
interchangeably in legal instruments and frameworks. While autonomy refers to the ability
to exercise freedom of choice and control over decisions affecting one’s life, including with
the help of someone if needed, independence means to live in the community without
assistance or, at least, where the amount of help does not subject older persons to the
decisions of others. In that sense, the concept of independence is broader than autonomy,
while autonomy may better reflect the reality of older persons, considering that with age,
the need for assistance tends to increase.
2.
Legal capacity and equal recognition before the law
47.
Various tools exist to measure the degree of physical, cognitive and psychological
autonomy, which take into account: mobility, communication and tasks performed on a
daily basis to determine the degree of functional and mental autonomy of an older person.
In terms of a human rights-based approach, however, the individual aspect of autonomy
refers not only to functional autonomy but also mainly to the right to equal recognition
before the law and legal capacity. This implies being recognized as a legal person before
the law and having the ability to exercise rights as a legal person. Consequently, the will
and preferences of older persons are respected, which allows for the exercise of free and
informed consent. Older persons should therefore be consulted about and involved in any
decision affecting their well-being.
48.
Legal capacity is a key aspect of autonomy, allowing older persons to exercise civil,
political, economic, social and cultural rights. In circumstances where an older person is
partially or completely unable to look after their own interests because of a mental
condition, such as dementia, or an extreme state of physical frailty, there may be a need for
supported decision making. There is a need to ensure, however, that in such instances a
person is not stripped of his or her legal capacity by guardianship measures, which remove
their ability to make decisions about certain aspects of their lives. It is important to note in
this regard that the Convention on the Rights of Persons with Disabilities provides that a
person’s status as a person with a disability or the existence of impairment must never be a
ground for denying legal capacity. In its general comment No. 1 on article 12 of the
Convention, the Committee on the Rights of Persons with Disabilities highlighted that the
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