CRPD/C/GC/1
persons with disabilities with respect to financial and economic affairs, on an equal basis
with others. Access to finance and property has traditionally been denied to persons with
disabilities based on the medical model of disability. That approach of denying persons
with disabilities legal capacity for financial matters must be replaced with support to
exercise legal capacity, in accordance with article 12, paragraph 3. In the same way as
gender may not be used as the basis for discrimination in the areas of finance and property,1
neither may disability.
III. Obligations of States parties
24.
States parties have an obligation to respect, protect and fulfil the right of all persons
with disabilities to equal recognition before the law. In this regard, States parties should
refrain from any action that deprives persons with disabilities of the right to equal
recognition before the law. States parties should take action to prevent non-State actors and
private persons from interfering with the ability of persons with disabilities to realize and
enjoy their human rights, including the right to legal capacity. One of the aims of support in
the exercise of legal capacity is to build the confidence and skills of persons with
disabilities so that they can exercise their legal capacity with less support in the future, if
they so wish. States parties have an obligation to provide training for persons receiving
support so that they can decide when less support is needed or when they no longer require
support in the exercise of their legal capacity.
25.
In order to fully recognize “universal legal capacity”, whereby all persons,
regardless of disability or decision-making skills, inherently possess legal capacity, States
parties must abolish denials of legal capacity that are discriminatory on the basis of
disability in purpose or effect.2
26.
In its concluding observations on States parties’ initial reports, in relation to article
12, the Committee on the Rights of Persons with Disabilities has repeatedly stated that
States parties must “review the laws allowing for guardianship and trusteeship, and take
action to develop laws and policies to replace regimes of substitute decision-making by
supported decision-making, which respects the person’s autonomy, will and preferences”.
27.
Substitute decision-making regimes can take many different forms, including
plenary guardianship, judicial interdiction and partial guardianship. However, these regimes
have certain common characteristics: they can be defined as systems where (i) legal
capacity is removed from a person, even if this is in respect of a single decision; (ii) a
substitute decision-maker can be appointed by someone other than the person concerned,
and this can be done against his or her will; and (iii) any decision made by a substitute
decision-maker is based on what is believed to be in the objective “best interests” of the
person concerned, as opposed to being based on the person’s own will and preferences.
28.
States parties’ obligation to replace substitute decision-making regimes by supported
decision-making requires both the abolition of substitute decision-making regimes and the
development of supported decision-making alternatives. The development of supported
decision-making systems in parallel with the maintenance of substitute decision-making
regimes is not sufficient to comply with article 12 of the Convention.
29.
A supported decision-making regime comprises various support options which give
primacy to a person’s will and preferences and respect human rights norms. It should
provide protection for all rights, including those related to autonomy (right to legal
1
2
6
See the Convention on the Elimination of All Forms of Discrimination against Women, art. 13 (b).
See the Convention on the Rights of Persons with Disabilities, art. 2, in conjunction with art. 5.