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 BachCanadian Association for Community Living

Legal Capacity: Recognition of a Person’s Right to Make

Health Care DecisionsCRPD Articles: 15, 25, 26

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

Financial/Property Decisions (purchase, sale, credit, investment, will) CRPD Articles: 12(5),28

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.

Types of Decision Making Status

Supported

Autonomous

Co-Decision-Making

•com

munity

Facilitated

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?

How do we allocate decision-making status ?

By maximizing each person’s decision-making ‘capability’ to carry out the ‘function’ of making personal decisions that give effect to, develop and constitute one’s personhood.

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.

‘Tests’ of whether reasonable effort has been made to maximize decision-making capability

1. Autonomous – With decision-making assistance and reasonable accommodation on the part of other parties, are the other parties able to understand the person’s will/intention sufficient to enter an agreement?

2. Supported – If not, is the person able to appoint a trusted representative/network to assist in expressing will/making decisions?

‘Tests’ of whether reasonable effort has been made to maximize decision-making

capability

3. Co-Decision-Making – If not, would another person, with supports and by providing accommodations, be able to discern a person’s will and intention sufficient to assist them in making decisions?

‘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.

Autonomous decision-making status

Supported decision-making status

Co-decision-making status

Facilitateddecision-making

Supports & Accommodation not yet feasible

Supports & Accommodation not yet feasible

Supports & Accommodation not

yet feasibleSupports &

Accommodationsufficient

Supports & Accommodation

sufficient

Supports & Accommodation

sufficient

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