Universal legal capacity for persons with disabilities: will, preferences and communication

Abstract

The right to legal capacity is a fundamental right that allows individuals to be a person before the law and exercise control over their own lives. For persons with disabilities, the right to legal capacity has often been restricted through ‘substitute decision-making’ where another individual exercises legal capacity on their behalf. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities challenges substitute decision-making by asserting that all persons with disabilities have the right to exercise their own legal capacity, and should never be stripped of this right. Per Article 12, where persons with disabilities face challenges in exercising their legal capacity, States Parties should implement frameworks of supported decision-making which adhere to the will and preferences of the individual. This thesis is concerned with the expression of will and preferences under frameworks of supported decision-making, specifically, the expression of will and preferences by persons with disabilities who have communication support needs and use varying forms of both verbal and non-verbal communication. This thesis will explore the interpretation of Article 12 regarding supported decision-making, will and preferences, and communication, and use these considerations to analyse frameworks of supported decision-making under the Irish Assisted Decision-Making (Capacity) Act. The purpose of analysing both Article 12 and the Irish Act is to propose a framework for persons tasked with providing support to persons with disabilities under the ADMCA derived from the capability approach, a normative framework that re-conceives classic welfarist notions that the possession of goods and resources were adequate indicators of justice. Using the capability approach, this thesis will put forth a framework that may be used by support persons under the ADMCA to determine the most appropriate method of communication to ascertain the will and preferences of all persons with disabilities, regardless of their method of communication.