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A Statutory Framework for the Right to Legal Capacity and Supported Decision Making

For Application in Provincial/Territorial Jurisdictions in Canada

The right to equal recognition before the law, and its attendant right to legal capacity without discrimination on the basis of disability, is recognized in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by Canada in 2010. The inclusion of Article 12 in the CRPD is a major achievement. It makes clear that people with disabilities have the right to control decisions about their lives with whatever kinds of support they require to do so, and that States Parties are obliged to establish the arrangements to make this possible. This includes enabling a person with significantly challenging disabilities to exercise control over decisions through the assistance of support persons who, in their relationship of personal knowledge and trust with the person, commit to interpreting and acting on that person’s preferences and will as the basis of decision making with others.

For governments to fulfil these obligations requires what many have referred to as a ‘paradigm shift’ in the usual approaches to protecting and promoting the right to legal capacity. Adults can no longer be required to demonstrate that they can meet certain tests of mental capacity in order to have their rights to legal capacity equally respected and protected. In recognizing this right and the supports needed to exercise it, the CRPD is consistent with the equality rights protections of the Canadian Charter of Rights and Freedoms.

Recognizing this obligation of governments under international law, the Canadian Association for Community Living (CACL) has taken another step with this report in our twenty year effort to secure recognition for people with intellectual and other disabilities of the right to supports in exercising legal capacity; or, what we referred to in our 1991 Task Force Report on ‘Alternatives to Guardianship’ as ‘supported decision making.’

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