It may be ancient history in some countries, but in too many others it describes the current situation. In this context, Article 12 of the United Nations Convention on the Rights of Persons with Disabilities was proposed in response. Interestingly, the right to legal capacity was originally in the same article as access to justice – two keys to opening the door? As noted above, the legal requirements for granting a binding power of attorney for property or personal hygiene sometimes exceed the cognitive abilities of a person with a developmental disability. In such cases, guardianship may unfortunately be necessary to ensure that the best interests of your disabled loved one are met. Applications for guardianship are considered only as a last resort, which does not have to be sought by a court or ordered by a court until all other avenues have been exhausted. 3. You agree to purchase an illegal drug from another person. Guardianship is a less common process, in part because the level of competence required to grant a power of attorney for personal care is much lower (remember that it is enough for your loved one to understand if the person they appoint has and appreciates a genuine interest in their well-being, that the appointee may have to make personal care decisions for them.) Guardianship of the individual also often becomes redundant because of the statutory substitute decision-making powers granted to family members under the Health Care Consent Act (see above). However, when it comes to the realities of everyday life, many family members worry about their loved ones who may need support to make various decisions. In Ontario, we do not currently have a legally recognized supported decision-making framework. This means that if your loved one is deemed incapable of making a decision, the law does not require a family member or friend to help them make that decision. Instead, the decision is left in limbo until someone with legal decision-making authority intervenes for your loved one, whether it`s a property or personal care lawyer, a legal guardian, or a substitute decision-maker for personal care matters. An example of legal capacity would be a person entering into a contract who is not a minor, who is not intoxicated and who does not have a mental disability.
It means having understanding, entering into a contract and understanding it. If the ground of protection is only an impairment or disability – without explicit mention of decision-making competence – the imposition of restrictions on legal capacity on the basis of mental incapacity can be identified as disability-neutral and, therefore, only indirect discrimination can be invoked. However, in cases of indirect discrimination, the State benefits from the so-called objective exception of justification and can demonstrate that the difference in treatment pursues a legitimate aim and that the difference in treatment is necessary and proportionate to achieve the legitimate aim. However, if “decision-making capacity” is a protected ground, then the imposition of limitations on legal capacity on the basis of intellectual disability is direct discrimination, and in my view, the ability of States parties to justify different treatment is more restricted in cases of direct discrimination than in cases of indirect discrimination in the case of discrimination imposed by the Committee on the Rights of Persons with Disabilities (Committee on the Rights of Persons with Disabilities). United Nations Persons with Disabilities, 2018, paragraphs 18(a)-(b)). As we have already discussed, a contract that does not have a proper offer, acceptance and consideration is not a contract at all. But these issues concern the Treaty itself. However, sometimes a contract is attacked because of the alleged incompetence of the person (or organization) who entered into the contract. In this article, we will discuss who has the legal capacity to enter into contracts.
I now come to my fourth question: what justifies the position against mental incapacity for work as a basis for imposing restrictions on legal capacity? Various arguments have been made, but I propose to base my argument on one thing: the imposition of restrictions on legal capacity on the basis of intellectual disability constitutes discrimination. Let us check what the opinion of the Committee on the Rights of Persons with Disabilities is on this matter. In its General Comment on article 12, the Committee emphasizes that “the functional approach aims to assess mental capacity and deny legal capacity accordingly. It is often based on a person`s ability to understand the nature and consequences of a decision and/or whether they can use or weigh relevant information. This approach is (…) applied in a discriminatory manner against persons with disabilities … (2014, para. 15). Finally, the link between resources, recognition and freedoms for persons with developmental disabilities was raised in several places during the event, and concerns were expressed that a narrow focus on legal capacity in the context of decision-making leads to neglect of these other important issues. Issues of resources and care are crucial, as high-quality and readily available services and support14 can minimize the circumstances in which legal capacity issues arise and allow for the exploration of alternatives that value well-being and recognition of the legal entity when this is the case.