CEU Electronic Theses and Dissertations, 2014
| Author | Méhes, Barbara |
|---|---|
| Title | Mental Disability Law: the recognition of legal capacity and the replacement of substituted decision-making - Approaches taken by the Council of Europe, England and Wales and Hungary |
| Summary | The radical nature of the change that the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has introduced in how inclusion, equality and the universality of human rights is perceived is reflected in the radical change that Article 12 of the Convention has introduced in relation to the recognition of legal capacity of all. Article 12 of the CRPD obliges states to recognize the right of persons with disabilities to exercise their legal capacity through making autonomous decisions and to provide assistance to this if support is required. The main focus of this thesis is the realization of the international standards in relation to the recognition of legal capacity and supported decision-making in different domestic legal setting. The main argument of the thesis is that international demands for a reform in the field of legal capacity law should be taken seriously: states are required to acknowledge universal legal capacity and to replace substituted forms of decision-making mechanism with adequate supported decision making procedures. The findings of the research suggest that domestic implementations fell short of the requirements of the CRPD. Legal systems relying on mechanisms of substituted decision-making in the form of traditional guardianship systems are prima facie contrary to the aspirations of Article 12 even if its last resort nature and the proportionality of the limitations on legal capacity are emphasized. Systems relying on the best interest approach can also be prone to criticism due to the flaws of the best interest criterion and the lack of meaningful supports in decision-making. |
| Supervisor | Oliver Lewis |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2014/mehes_barbara.pdf |
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