A note on language: I use both “identity-first” (disabled person) and “people-first” (person with a disability) language throughout this article. People with disabilities are not a homogenous group, and different people have distinct preferences of how they would like to be referred to. For example, many people in the autistic community strongly prefer identity-first language (autstic person), while many people in the intellectual disability community strongly prefer person-first language (person with an intellectual disability).
The 2006 United Nations Convention on the Rights of Persons with Disabilities (CRPD) set forth legal and policy directives necessary to advance and protect the rights of people with disabilities around the world; 184 countries have since ratified the agreement, and six more have signed without ratifying it. Article 12 of the CRPD outlines the legal capacity and decision-making rights of disabled people. Article 12, as Disability Rights International summarizes, “recognizes the right of all persons with disabilities to make decisions, with legal effect, over their own lives – also known as the right to legal capacity.” Many disabled advocates vehemently assert that the right to make decisions about one’s own life is of paramount importance to maintaining dignity. Despite this, traditional guardianship law—which at its least restrictive limits an individual’s legal capacity and at its most restrictive completely removes an individual’s legal capacity—is rooted in ableist ideas about competency which are incompatible with the rights outlined in Article 12. Many activists demand that alternatives such as the supported decision-making framework, whereby disabled people receive assistance from trusted people in making decisions without relinquishing legal rights, replace traditional guardianship systems. In response to the CRPD and advocacy efforts by disability rights groups, many countries have begun to reform their guardianship laws (for one example of many, see Asdown Colombia and Sergio Araque’s successful advocacy for legislative reform in Colombia).
Given the frequent “interaction between institutions and individuals across North America,” and the subsequent need for “understanding of the similarities shared by the legal systems of the United States, Canada, and Mexico” this article will focus on the status of guardianship law in North America (The George Washington University Law School, North American Consortium on Legal Education). It will overview both positive developments and areas for continued growth in Canada, Mexico, and the United States.
Canada signed the CRPD in 2007 and ratified it–with a reservation for Article 12–in 2010. Canada’s individual provinces and territories are responsible for making their own respective guardianship laws. British Columbia’s 2000 Representation Agreement Act made Canada one of the first countries in the world to codify a supported decision-making framework, as an alternative to traditional guardianship. The Representation Agreement Act includes a “presumption of capability” and allows disabled people to access supportive decision-making without requiring that they first prove legal capacity through strict assessments. This presumptive approach is celebrated by disability advocates and the UN, who both reject the use of tests to restrict access to decision-making support.
That said, guardianship still exists under British Columbia law and throughout Canada. As of the UN Special Rapporteur’s most recent visit to Canada in 2019, there were approximately 20,800 adults under “different forms of guardianship” in Ontario, and approximately 34,000 adults under “guardianship or curatorship” in Quebec. Canada has the opportunity to build on its long history of alternatives to traditional guardianship law by, as the UN Special Rapporteur urges, “initiat[ing] comprehensive legal review processes of [Canada’s] legal systems to enable the full implementation of the right to legal capacity of persons with disabilities,” withdrawing its reservation for Article 12, and “elimina[ting] all forms of substitute decision-making across the country.” Canadian disability rights groups like Inclusion Canada, as well as scholarship out of educational institutions like the McGill Centre for Human Rights and Legal Pluralism, call for federal, provincial, and territorial government cooperation to develop an inter-jurisdictional legal and policy framework that recognizes supported-decision making arrangements and ensures Canadians with disabilities can access the supports they need to exercise their right to legal capacity, as guaranteed by Article 12.
Mexico was an early supporter of the CRPD; it signed and ratified it in 2007. In 2019, Mexico’s Supreme Court of Justice first held that guardianship of a person with a disability violated the Mexican Constitution and Article 12 of the CRPD. The case involved a 50-year-old man (Ernesto) with an intellectual disability who had been placed under full guardianship. Though only binding to the parties involved, in recognizing that Ernesto’s guardianship was both unconstitutional and in contradiction to the CRPD, the case was a historic decision from Mexico’s highest court. Its holding opened the door for the elimination of Mexico’s guardianship system through legislative reform.
However, the Mexican Senate is currently considering a bill that would, according to advocates, be closer to replicating Mexico’s traditional guardianship system than eliminating it. In response, more than 250 Mexican and international disability rights advocates have signed an open letter to the Mexican Senate’s Justice Commission, calling on the Senate to uphold its obligations under Article 12 and the Mexican Constitution by building upon recent momentum in recognizing and protecting legal capacity for people with disabilities. The letter (translated) urges that the proposed bill be rewritten to “recognize full legal capacity for people with disabilities on an equal condition with others, and the right to access supported decision-making when they so desire. . .”
The United States
The United States is one of six countries in the world who have chosen to sign, but not ratify, the CRPD; the U.S. signed in 2009. Since then, adopting alternatives to guardianship has been the prerogative of state and local governments. Many states, in response to consistent pressure from disability rights groups to recognize less restrictive alternatives, have passed laws doing so (for example, Texas, Delaware, Wisconsin, and the District of Columbia). Recently, the #FreeBritney movement, in response to celebrity Britney Spears’s abusive conservatorship and her fight to have it removed, has brought issues of legal capacity into the general American discourse and new legislation in the state of California.
Still, plenary guardianship (the most restrictive form of guardianship, which completely strips an individual of their legal capacity) continues to exist. Access to less restrictive alternatives, like supported-decision-making, is dependent on where a disabled individual lives. Activists also admonish the disproportionate, negative impact restrictive guardianship law has historically had and contemporaneously has on Black and Indigenous people in the United States. State, local, and territorial governments can use the momentum generated by the #FreeBritney movement to answer the continued call from advocates to eliminate plenary guardianship in the United States. This month, the American Bar Association adopted the recommendations of the Fourth National Guardianship Summit, which includes urging “[s]tates [to] eliminate plenary guardianship, allowing people to retain the maximum of rights, and if guardianship is imposed, [to] require tailored guardianship orders in all cases.”
The Canadian, Mexican, and American legal landscapes regarding disabled people’s decision-making rights have improved since the CRPD’s passage in 2006. However, improvement must not be mistaken for success, and significant work remains before Canada, Mexico, and the United States fully protect Article 12 rights. Continued improvement in each of these nation’s legal capacity laws and ultimately, the universal realization of these rights, requires listening to and following the leadership of people with disabilities.
Author Biography: Elizabeth Schroeder is a moderator of the International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Master’s of Education in Special Education from Vanderbilt University and a Bachelor’s of Science in Psychology from the University of North Carolina at Chapel Hill.Tweet