Spurred by the Convention on the Rights of Person with Disabilities and efforts in Canada, Europe, and elsewhere, supported decision-making (SDM) is increasingly seen as a model that enables people with disabilities to express their will and preferences and as an alternative to guardianship.
United Nations Convention on the Rights of Persons with Disabilities (CRPD)
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006. The United States signed the treaty on July 30, 2009, but it has not ratified the treaty. More than 170 nations have ratified the UNCRPD; there are about 160 signatories, including countries and regional interest organizations.
Article 12 of the CRPD, Equal Recognition before the law, provides that:
States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
With this statement, Article 12 solidified that all people with disabilities have legal capacity equal to that of people without disabilities. This recognizes that people with disabilities can make their own choices and decisions consistent with their will and preferences. The Convention goes on to clarify that people with disabilities should be provided support to do this:
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
To realize these goals of achieving legal capacity equal to others, people with disabilities must be provided support — support so that they can exercise their ability to make decisions consistent with their will and preferences. By providing appropriate support, the individual is able to exercise their legal capacity to the fullest extent possible.
SDM is the way that the legal capacity of a person with a disability can be exercised.
While some may consider these ideas to be revolutionary they are really an attempt to change the way society and the law view and treat people with disabilities. They are the next step in a progression to independence and self-determination.
They are the foundation of real and complete citizenship for persons with disabilities and are, not incidentally, the pillars of SDM.
International Work on SDM
There has been planning and implementation on supported decision-making across the world including in Australia, Canada, Ireland, Israel, Sweden, Bulgaria, Croatia and Peru.
For example, in 1996, British Columbia enacted the Representation Agreement Act which establishes a system to allow persons with disabilities make decisions on various issues, without court involvement. Under this system, people with disabilities can nominate other people to make decisions with them. Several other Canadian provinces have similar mechanisms to promote SDM, including Saskatchewan, Alberta, Manitoba and the Yukon. The Canadian model has been followed in one form or another in many other countries.
In Sweden, which has abolished plenary (full) guardianship, an individual can request a personal “god man” (fair person, mentor) who basically work for that individual and honors his/her will and preferences. Initially a pilot project, the personal god man program went national in 2000. For more, see Kristin Booth Glen, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond, 44 Colum. Hum. Rts. L. Rev. 93, 140 (2012).
Advocates provide decision-making support, especially on financial matters, to persons with mental illness in Norway, and the Czech Republic has a law that recognizes people with disabilities have legal capacity and promotes supported decision-making. Ireland passed an assisted decision-making capacity act to enable individuals to get support making decisions about health, welfare and finances, among other issues. Israel also enacted SDM legislation.