CRPD/C/GC/1
capacity, right to equal recognition before the law, right to choose where to live, etc.) and
rights related to freedom from abuse and ill-treatment (right to life, right to physical
integrity, etc.). Furthermore, systems of supported decision-making should not overregulate the lives of persons with disabilities. While supported decision-making regimes
can take many forms, they should all incorporate certain key provisions to ensure
compliance with article 12 of the Convention, including the following:
(a)
Supported decision-making must be available to all. A person’s level of
support needs, especially where these are high, should not be a barrier to obtaining support
in decision-making;
(b)
All forms of support in the exercise of legal capacity, including more
intensive forms of support, must be based on the will and preference of the person, not on
what is perceived as being in his or her objective best interests;
(c)
A person’s mode of communication must not be a barrier to obtaining
support in decision-making, even where this communication is non-conventional, or
understood by very few people;
(d)
Legal recognition of the support person(s) formally chosen by a person must
be available and accessible, and States have an obligation to facilitate the creation of
support, particularly for people who are isolated and may not have access to naturally
occurring support in the community. This must include a mechanism for third parties to
verify the identity of a support person as well as a mechanism for third parties to challenge
the action of a support person if they believe that the support person is not acting in
accordance with the will and preferences of the person concerned;
(e)
In order to comply with the requirement, set out in article 12, paragraph 3, of
the Convention, for States parties to take measures to “provide access” to the support
required, States parties must ensure that support is available at nominal or no cost to
persons with disabilities and that lack of financial resources is not a barrier to accessing
support in the exercise of legal capacity;
(f)
Support in decision-making must not be used as justification for limiting
other fundamental rights of persons with disabilities, especially the right to vote, the right to
marry, or establish a civil partnership, and found a family, reproductive rights, parental
rights, the right to give consent for intimate relationships and medical treatment, and the
right to liberty;
(g)
The person must have the right to refuse support and terminate or change the
support relationship at any time;
(h)
Safeguards must be set up for all processes relating to legal capacity and
support in exercising legal capacity. The goal of safeguards is to ensure that the person’s
will and preferences are respected.
(i)
The provision of support to exercise legal capacity should not hinge on
mental capacity assessments; new, non-discriminatory indicators of support needs are
required in the provision of support to exercise legal capacity.
30.
The right to equality before the law has long been recognized as a civil and political
right, with roots in the International Covenant on Civil and Political Rights. Civil and
political rights attach at the moment of ratification and States parties are required to take
steps to immediately realize those rights. As such, the rights provided for in article 12 apply
at the moment of ratification and are subject to immediate realization. The State obligation,
provided for in article 12, paragraph 3, to provide access to support in the exercise of legal
capacity is an obligation for the fulfilment of the civil and political right to equal
recognition before the law. “Progressive realization” (art. 4, para. 2) does not apply to the
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