People with an intellectual disability are systematically and consistently denied legal capacity, by guardianship and substitute decision-making laws and systems. This deprivation of legal capacity prevents people with an intellectual disability from fully exercising self-determination and full citizenship. It often prevents people with an intellectual disability from equal access to justice, from taking part in elections, from signing a contract and opening a bank account, and from making health-related or reproductive decisions – among many other aspects of daily life.
Adults with an intellectual disability must have their legal capacity recognized and supported. Adults with an intellectual disability have the right to act legally independently and must be provided appropriate accommodation to exercise this right. Where required, adults with an intellectual disability must be assured access, with appropriate safeguards, to needed supports.
Guardianship laws assume that some people do not have the capacity to make legally binding decisions and put in place substitute decision making provisions.
Supported Decision-Making means a person may accept help in making decisions without relinquishing the right to make decisions. Supported decision-making helps a person to understand information and make decisions based on his or her own preferences. A person with an intellectual disability might need help with reading, or may need support in focusing attention to make a decision. A person who has no verbal communication might have a trusted person or people who interprets their non-verbal communications, such as positive or negative physical reactions, or uses Alternative and Augmentative Communication.
Rights to equality, self-determination, full citizenship, valued recognition, and respect from others are legally recognized and assured for all people with an intellectual disability.
Political commitment to an inclusive legislative framework in three provinces/ territories and a platform for a global campaign.
Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) recognizes that all people with disabilities enjoy legal capacity on an equal basis with others; it also secures the right to use support to exercise legal capacity. The CRPD, Canada’s reservation on Article 12, and the uneven access and recognition of the use of supported decision making across the country calls for ongoing dialogue and interpretation, in order to achieve a consistent and up‐to‐date legal framework at all jurisdictional levels.
CACL, in partnership with our research institute IRIS, is actively working to advance supported decision-making legislation in Canada. Working with our provincial-territorial members, CACL has established provincial coalitions for policy development and provides technical support to governments implementing legislation changes.
IRIS is working internationally on supported decision making and is considered a global thought leader in this area. Click here for more information on their international work.
Click here for resources on legal capacity.