Supported instead of substituted decision-making. Let people make their own decisions.

Legal capacity is the right to make legally binding decisions which have to be respected by the law and other people. The United Nations’ Convention on the Rights of Persons with Disabilities (UN CRPD) recognizes that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.

Yet, many people with intellectual disabilities are deprived of their legal capacity and put under guardianship. This means that they are not able to make their own decisions on important topics when it comes to their health, finances, where they would like to live or who to votefor.

People with intellectual disabilities do not need to be ‘protected’ from making their own decisions. They should be supported in their decision-making. Inclusion Europe fights for supported decision-making for people with intellectual disabilities.

What is the problem?

What shall I wear? Where do I want to live? Who do I want to vote for? Life is full of decisions. Some decisions we make turn out to be wrong. But everyone makes mistakes, don’t we say that we learn from our mistakes?

There is a widespread belief that people with intellectual disabilities need to be “protected” from making their own decisions. This leads to them being put under guardianship and stripped of their legal capacity.

Many people with intellectual disabilities in Europe have been deprived of their legal capacity. As a result, other rights are affected as well, including effective access to justice, political participation and the right to vote. Without legal capacity, it is not possible to make your own medical and financial decisions.

When it comes to legal capacity laws, the situation in Europe varies a lot from country to country. Some have introduced progressive laws, whereas others continue to stick to outdated legislation. A general trend of reforms to implement “modern guardianship” laws keeps the question of legal capacity on the political agenda in many countries. There have been several attempts to include models of supported-decision making in the legislation in some countries.

Challenges, however, continue to exist:

  • Economic and financial challenges: people often are not given the possibility to hold a bank account, and, in some cases, to dispose of their own money;
  • Overprotective / restrictive attitudes in society towards people with intellectual disabilities;
  • Legal framework: guardianship agreements are still a part of many national legislations. These countries have not shifted from the guardianship system to the assisted-decision making one intended by the UN CRPD;
  • Lack of political will to make the change happen.

What is the solution?

Inclusion Europe advocates for a change in law in countries that still put people under full guardianship and strip them from their legal capacity. Supported decision-making systems with effective safeguards are viable alternatives that, in accordance with the UN CRPD, should be introduced instead.

Supported decision-making means that no transfer of rights takes place. Only the support is provided, and the person remains in control of their life. This support can be provided by a personal assistant for example.

Inclusion Europe has identified several areas where progress needs to be made to support the implementation of modern legal capacity laws:

  • More financial and human resources to develop effective and accessible community-based services, to back up supported decision-making;
  • More and better support networks for people with intellectual disabilities;
  • Better knowledge amongst professionals, policy-makers and families on the distinction between support persons and guardians, and a better understanding of their respective role;
  • Better involvement of self-advocates and organisations of people with intellectual disabilities in policy and decision-making;
  • Better exchange of information on good practices between countries;
  • More awareness raising on the abilities of people with intellectual disabilities.

What is Inclusion Europe working on?