Scholarly record

FROM PROTECTION TO AUTONOMY AND SUPPORT – CHALLENGES OF COMPLIANCE WITH THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES STANDARDS

A. C. Margaletic, I. Simovic

Abstract

Article 12 of the UN Convention on the Rights of Persons with Disabilities as one of the core articles of this first comprehensive human rights instrument of the 21st century sets equality before the law as a basic general principle of human rights protection affirming that all persons with disabilities have full legal capacity in all aspects of life on an equal basis with others. Implementation of this regulation in national legal capacity laws represents a challengeable task for state parties. Namely, the Committee on the Rights of Persons with Disabilities in its first General Comment on this Article calls for the abolishment of all forms of substitute decision-making recognizing that the individual with a disability may need some assistance in making and communicating a decision and therefore calls for revisions of national laws and implementation of supported decision making system for persons with disabilities and abolishment of traditional system of guardianship. Therefore this paper will analyze general governing principles regarding the exercise of legal capacity and current regulations in Croatian Family Law with the aim to present further challenges in preservation of personal autonomy and self-determination for persons with mental disabilities and coherent implementation of supported decision making in legislative and practice. We will also consider whether the full abolishment of all forms of substitute decision-making is a realistic aim for national legal capacity laws or different interpretation of Convention would be a more plausible solution in implementation of Article 12.

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