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Maximizing Decision-making capabilities for the exercise of legal capacity

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Title: Maximizing Decision-making capabilities for the exercise of legal capacity


1
Maximizing Decision-making capabilities for the
exercise of legal capacity
  • Presentation to Conference on Disability and
    Legal Capacity under the CRPD
  • Harvard Law School February 20 2010
  • By Michael Bach
  • Canadian Association for Community Living

2
Legal Capacity Recognition of a Persons Right
to Make
Health Care Decisions CRPD Articles 15, 25, 26
Financial/Property Decisions (purchase, sale,
credit, investment, will) CRPD Articles 12(5),28
Personal Life Decisions (where to live,
relationships, participation, access, employment,
mobility and supports) CRPD Articles 13, 14, 15,
18, 19, 20, 23, 25, 26, 27, 28, 29, 30
3
To whom does this recognition of legal capacity
get ascribed? On what basis?
  • An adult/individual of age of majority to whom,
    at a minimum, personal will can reasonably be
    ascribed by at least one other person.

4
Types of Decision Making Status
Autonomous
  • community

Supported
Co-Decision- Making
Facilitated
5
  • To achieve equal recognition before the law
    requires a just allocation of decision-making
    status. So
  • How do we decide who gets what decision-making
    status?

6
How do we allocate decision-making status ?
  • By maximizing each persons decision-making
    capability to carry out the function of
    making personal decisions that give effect to,
    develop and constitute ones personhood.

7
Sen Functionings and Capabilities
  • Functionings the beings and doings of a person
    like the doing of making decisions
  • Capabilities the effectively possible a
    capability is not an individual skill, but a
    possibility created through inputs of goods and
    services, social relationships, environmental
    context, etc.

8
Tests of whether reasonable effort has been
made to maximize decision-making capability
  • Autonomous With decision-making assistance and
    reasonable accommodation on the part of other
    parties, are the other parties able to understand
    the persons will/intention sufficient to enter
    an agreement?
  • Supported If not, is the person able to
    appoint a trusted representative/network to
    assist in expressing will/making decisions?

9
Tests of whether reasonable effort has been
made to maximize decision-making capability
  • Co-Decision-Making If not, would another
    person, with supports and by providing
    accommodations, be able to discern a persons
    will and intention sufficient to assist them in
    making decisions?

10
Tests of whether reasonable effort have been
made to maximize decision-making capability
  • 4. Facilitated If not, as a last resort,
    appoint a facilitator time-limited,
    decision-specific to facilitate making of needed
    decisions, with ongoing duty to invest in
    creation of decision-making capabilities
    assistance, enabling relationships with others
    who commit to assisting a person in developing
    and expressing his/her will, etc.

11
Autonomous decision-making status
Supports Accommodation not yet feasible
Supports Accommodationsufficient
Supported decision-making status
Supports Accommodation not yet feasible
Maximizing D-M Capability to exercise Legal
Capacity
Supports Accommodation sufficient
Co-decision-making status
Supports Accommodation not yet feasible
Supports Accommodation sufficient
Facilitated decision-making
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