Abstract
AbstractThis paper explores substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD, adopted by the UN General Assembly in 2006, introduces a ‘paradigm shift’ in the regulation of legal capacity by endorsing the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’. After examining the conceptual and regulatory issues surrounding substitute and supported decision-making and the requirements of the CRPD and the first General Comment of the UN Committee on the Rights of Persons with Disabilities (GC1), the paper proceeds to examine the regulations of the Mental Capacity Act 2005 (England & Wales) and the Hungarian Civil Code and their (non-)compliance with the CRPD and GC1.
Highlights
This article explores the questions of substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD)
We examine the provisions of the CRPD, the Hungarian Civil Code and the Mental Capacity Act (MCA) 2005 (England & Wales)
The central question is not whether the two countries comply with the requirements of the CRPD as interpreted by the UN Committee on the Rights of Persons with Disabilities – to date, there is no country in the world that has a regulation that fully satisfies the CRPD’s requirement to replace substitute decision-making with supported decision-making.[2]
Summary
This article explores the questions of substitute and supported decision-making in the light of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD was adopted by the UN General Assembly in 2006 and it is widely considered as a progressive instrument in safeguarding the rights of persons with disabilities Among other things, it introduces a ‘paradigm shift’ in the regulation of legal capacity; the CRPD adopts the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’.1. It introduces a ‘paradigm shift’ in the regulation of legal capacity; the CRPD adopts the idea of universal legal capacity, i.e. that everyone, including persons with disabilities ‘enjoy legal capacity on an equal basis with others’.1 This implies a shift from substitute to supported decision-making, which, at the same time, imposes a significant duty on States Parties to harmonise their national legislation with this requirement. Juxtaposing these, we will see that there are ‘issues’ which can be ‘transferred’ from the English to the Hungarian context, but there are some that are related to just one of these jurisdictions
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