CRPD/C/GC/1
diminished for persons with disabilities. For example, laws may allow persons with
disabilities to own property, but may not always respect the actions taken by them in terms
of buying and selling property. Legal capacity means that all people, including persons with
disabilities, have legal standing and legal agency simply by virtue of being human.
Therefore, both strands of legal capacity must be recognized for the right to legal capacity
to be fulfilled; they cannot be separated. The concept of mental capacity is highly
controversial in and of itself. Mental capacity is not, as is commonly presented, an
objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on
social and political contexts, as are the disciplines, professions and practices which play a
dominant role in assessing mental capacity.
15.
In most of the State party reports that the Committee has examined so far, the
concepts of mental and legal capacity have been conflated so that where a person is
considered to have impaired decision-making skills, often because of a cognitive or
psychosocial disability, his or her legal capacity to make a particular decision is
consequently removed. This is decided simply on the basis of the diagnosis of an
impairment (status approach), or where a person makes a decision that is considered to have
negative consequences (outcome approach), or where a person’s decision-making skills are
considered to be deficient (functional approach). The functional approach attempts to assess
mental capacity and deny legal capacity accordingly. It is often based on whether a person
can understand the nature and consequences of a decision and/or whether he or she can use
or weigh the relevant information. This approach is flawed for two key reasons: (a) it is
discriminatorily applied to people with disabilities; and (b) it presumes to be able to
accurately assess the inner-workings of the human mind and, when the person does not pass
the assessment, it then denies him or her a core human right — the right to equal
recognition before the law. In all of those approaches, a person’s disability and/or decisionmaking skills are taken as legitimate grounds for denying his or her legal capacity and
lowering his or her status as a person before the law. Article 12 does not permit such
discriminatory denial of legal capacity, but, rather, requires that support be provided in the
exercise of legal capacity.
Article 12, paragraph 3
16.
Article 12, paragraph 3, recognizes that States parties have an obligation to provide
persons with disabilities with access to support in the exercise of their legal capacity. States
parties must refrain from denying persons with disabilities their legal capacity and must,
rather, provide persons with disabilities access to the support necessary to enable them to
make decisions that have legal effect.
17.
Support in the exercise of legal capacity must respect the rights, will and preferences
of persons with disabilities and should never amount to substitute decision-making. Article
12, paragraph 3, does not specify what form the support should take. “Support” is a broad
term that encompasses both informal and formal support arrangements, of varying types
and intensity. For example, persons with disabilities may choose one or more trusted
support persons to assist them in exercising their legal capacity for certain types of
decisions, or may call on other forms of support, such as peer support, advocacy (including
self-advocacy support), or assistance with communication. Support to persons with
disabilities in the exercise of their legal capacity might include measures relating to
universal design and accessibility — for example, requiring private and public actors, such
as banks and financial institutions, to provide information in an understandable format or to
provide professional sign language interpretation — in order to enable persons with
disabilities to perform the legal acts required to open a bank account, conclude contracts or
conduct other social transactions. Support can also constitute the development and
recognition of diverse, non-conventional methods of communication, especially for those
4