restoring voice to people
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Restoring Voice to People . Exploring the Right to Legal Capacity and Supported Decision-Making . Prader-Willi Syndrome Association Ireland (PWSAI) Conference Dublin, Ireland April 19, 2013. Anna Arstein-Kerslake. Centre for Disability Law and Policy National University of Ireland, Galway. - PowerPoint PPT PresentationTRANSCRIPT
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Restoring Voice to People
Exploring the Right to Legal Capacity and Supported Decision-
Making
Prader-Willi Syndrome Association Ireland (PWSAI)
ConferenceDublin, IrelandApril 19, 2013
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Anna Arstein-KerslakeCentre for Disability Law and PolicyNational University of Ireland, Galway
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Anna Arstein-Kerslake, Esq.
Family memberCommunity support service providerB.A. in SociologyJ.D. in Law
Barred to practice in New YorkMarie Curie Research Fellow
Disability Rights Expanding Accessible Markets (DREAM)
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Today’s PresentationHuman Rights Protections
Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD)The right to legal capacityThe right to support for exercising legal capacity
Supported Decision-Making in Practice
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Legal Capacity Law: Legislating Personhood
Legal capacity = the law recognizing an individual as a decision-maker
What is legal capacity?Definition:
Capacity to act (enter into K, marriage, vote, etc.)
Capacity to be a holder of rights
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Mental Capacity vs. Legal Capacity
Mental Capacity = decision-making skillsLegal Capacity = holder of rights and actor
under the lawTraditional capacity regimes
Functional approachMental Capacity Act 2005 (England and Wales)
Status approachWard of Court (Ireland)
Outcome approachMental Health Law
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Human RightsUnited Nations Convention on the Rights of
Persons with Disabilities (CRPD) Article 12 – the Right to Equal Recognition
Right to Legal CapacityRight to Supported Decision-Making
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CRPD, Article 12(1-3)1. States Parties reaffirm that persons with
disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
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CRPD, Article 12(4)4. States Parties shall ensure that all measures that relate
to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.
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CRPD, Article 12 Requirements of Article 12
NO denials of legal capacity (“Universal Legal Capacity”)
REPLACE substituted decision making with supported decision makingSubstituted decision making =
“Best Interest” paradigmSupported decision making =
“Will and Preference” paradigm Ensure adequate safeguards
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Support ParadigmEveryone is presumed to be legally independent
and no one can be forced into a supported or representative arrangement
Every individual is supported through enabling conditions to exercise his/her legal capacity
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Support ParadigmSupport for Exercising Legal Capacity
Support for interactions and potential interactions with the legal systemE.g. voting, entering into contracts, financial transactions,
access to justice, etc.
Supported Decision-Making Generally Often interacts with support for exercising legal capacity
E.g. support for making healthy decisions so your mind and body are healthy for other kinds of decision-making
E.g. sex education and capacity to consent to sex E.g. Daily living decision-making, sex education, support
in employment, support in education, etc.
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Support for Exercising Legal Capacity
Access to informal supportsAccessible informationAccessible buildings Support circles
Formal supported decision making arrangementsRepresentation agreementsSupported decision-making personnel
Facilitated decision making (last resort)Will and preference cannot be determined Imagined will and preference / sole benefit
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New Irish Capacity Legislation
Heads of Bill (2008)NUIG campaigning with Amnesty Ireland for
CRPD compliant legislationUpcoming conference on April 29, 2013
Supported decision-making in theory & practice: Ireland’s capacity bill
Hopeful that the new draft will include supported decision-making mechanisms
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Supported Decision-Making Generally and Prader-Willi
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Providing SupportMeet the individual “where s/he is”
No preconceived notionsBe patient Listen!
“I make good decisions!”Trust each other
Empower each other
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Listen Hopes and desires Lifestyle choices
Where to live Who to live with Friends Family Work Education
Preferences for support? Who? How? When?
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NutritionTrust each otherDevelop healthy habits
Dialogue about what is healthyPortion sizesCaloriesEating out
Responsibility Forgive each other
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ExerciseHave fun!Develop healthy habits
Dialogue about exercise and healthBuilding strength Being safe
ResponsibilityHave fun!
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Community LifeListen!TrustLean on othersBuild circle of support
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Its not always easyConflict is OK – its part of the processEveryday is a new dayLet go and have fun togetherTrust each other
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ConclusionHuman rights norms require:
Respecting the right to be recognized as a person before the law and the right to exercise legal capacity
Fulfilling the right to support in exercising legal capacity Listening and empowering
New support paradigm may be formalized in the new capacity legislation, but informally we can all do it!