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Maximizing Decision-making capabilities for the exercise of legal capacity. Presentation to Conference on Disability and Legal Capacity under the CRPD Harvard Law School – February 20 2010 By Michael Bach Canadian Association for Community Living.

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maximizing decision making capabilities for the exercise of legal capacity

Maximizing Decision-making capabilities for the exercise of legal capacity

Presentation to Conference on Disability and Legal Capacity under the CRPD

Harvard Law School – February 20 2010

By Michael Bach

Canadian Association for Community Living

legal capacity recognition of a person s right to make
Legal Capacity: Recognition of a Person’s Right to Make

Health Care Decisions

CRPD Articles: 15, 25, 26

Financial/Property Decisions (purchase, sale, credit, investment, will)CRPD Articles: 12(5),28

Personal Life Decisions (where to live, relationships, participation, access, employment, mobility and supports)CRPD Articles: 13, 14, 15, 18, 19, 20, 23, 25, 26, 27, 28, 29, 30

to whom does this recognition of legal capacity get ascribed on what basis
To whom does this recognition of legal capacity get ascribed? On what basis?

An adult/individual of age of majority – to whom, at a minimum, personal will can reasonably be ascribed by at least one other person.

slide4

Types of Decision Making Status

  • community

Autonomous

Supported

Co-Decision-

Making

Facilitated

slide5

To achieve ‘equal’ recognition before the law requires a just allocation of decision-making status. So…

How do we decide who gets what decision-making status?

how do we allocate decision making status
How do we allocate decision-making status ?

By maximizing each person’s decision-making ‘capability’ to carry out the ‘function’ of making personal decisions that give effect to, develop and constitute one’s personhood.

sen functionings and capabilities
Sen: ‘Functionings’ and ‘Capabilities’
  • Functionings – the beings and doings of a person – like the doing of making decisions
  • Capabilities – the effectively possible – a capability is not an individual skill, but a possibility created through inputs of goods and services, social relationships, environmental context, etc.
tests of whether reasonable effort has been made to maximize decision making capability
‘Tests’ of whether reasonable effort has been made to maximize decision-making capability
  • Autonomous – With decision-making assistance and reasonable accommodation on the part of other parties, are the other parties able to understand the person’s will/intention sufficient to enter an agreement?
  • Supported – If not, is the person able to appoint a trusted representative/network to assist in expressing will/making decisions?
tests of whether reasonable effort has been made to maximize decision making capability1
‘Tests’ of whether reasonable effort has been made to maximize decision-making capability
  • Co-Decision-Making – If not, would another person, with supports and by providing accommodations, be able to discern a person’s will and intention sufficient to assist them in making decisions?
tests of whether reasonable effort have been made to maximize decision making capability
‘Tests’ of whether reasonable effort have been made to maximize decision-making capability

4. Facilitated – If not, as a last resort, appoint a facilitator – time-limited, decision-specific to facilitate making of needed decisions, with ongoing duty to invest in creation of decision-making capabilities – assistance, enabling relationships with others who commit to assisting a person in developing and expressing his/her will, etc.

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Autonomous decision-making status

Supports & Accommodation

not yet feasible

Supports & Accommodationsufficient

Supported decision-making status

Supports & Accommodation

not yet feasible

Maximizing D-M Capability to exercise Legal Capacity

Supports & Accommodation

sufficient

Co-decision-making status

Supports & Accommodation not yet feasible

Supports & Accommodation

sufficient

Facilitated

decision-making