In the opinion of the HFHR, steps taken to abolish incapacitation should be supported as they remain aligned with the relevant standard established by the Convention on the Rights of Persons with Disabilities. The Convention provides that persons with disabilities have both legal capacity and a capacity to perform acts in law on an equal basis with others in all aspects of life. Furthermore, the discussed draft aims at replacing the indefinite adjudication of incapacitation with a system of periodic assessment of grounds justifying the exercise of substitute decision-making.
Still, as the HFHR argues, the planned legislative reform falls short of fully meeting the Convention standard. “The proposed substitute custody mechanisms such as a co-decision scheme or exclusive substitution scheme are based on the existing incapacitation framework and involve a certain amount of limitation or deprivation of one’s capacity to perform acts in law. This contradicts the Convention which explicitly bans any form of substituted decision-making”, says Dr Dorota Pudzianowska, HFHR’s lawyer. “The draft also makes no reference to the limitations of political rights of persons with disabilities, and fails to bring up the issue of affording voting rights for persons with an intellectual or mental disability”, adds Dr Pudzianowska.
