The Fight for Personhood, Legal Capacity, and Equal Recognition Under Law for People with Disabilities in Israel and Beyond

Abstract

In 2016, Israel became one of the first countries in the world to introduce supported decision-making as an alternative to guardianship in a nationwide law. The Israeli law was enacted as an amendment to Israel’s Guardianship and Legal Capacity Law. This law provides a model to other countries that are considering abolishing or revising their guardianship laws in light of the Convention on the Rights of People with Disabilities (CRPD). The United Nations adopted the CRPD in 2006. Since then, 175 countries have ratified it, including Israel, but not the United States. Article 12 of the CRPD specifically recognizes the right to legal capacity for all people with disabilities, as well as the right to support that some people with disabilities may need in order to exercise their right to legal capacity and equal recognition under law.

The purpose of this Article is to examine the extent to which guardianship is compatible with the fundamental values of international human rights law, especially the CRPD; and if not, to consider alternatives to guardianship that comply with human rights law. Part I of this Article reviews the historical and legal background of the development of guardianship laws, including arguments against guardianship from different points of view. Part II of the Article discusses the right to equal recognition under law prior to the CRPD, followed by Part III of the Article, which discusses the background and language of Article 12 of the CRPD. Part IV of this Article discusses the Israeli Legal Capacity and Guardianship Law of 1962 and its recent amendment, which reflects the movement in Israel to include supported decision-making as an alternative to the substituted decision-making regime included in Israel’s prior guardianship law. This Part also discusses recent Israeli Supreme Court decisions, which perpetuate the unwarranted denial of legal capacity for people with disabilities despite the Court’s human rights rhetoric. Part V of the Article discusses the background, language, and purpose of Israel’s new amendment to its Legal Capacity and Guardianship Law. Although Israel is not the first country to authorize supported decision-making as a matter of law, it is one of the first countries to adopt a nationwide law that specifically includes supported decision-making as a legal alternative to guardianship. Part VI of the Article discusses developments in other countries around the world as they strive to conform their domestic guardianship laws to the CRPD. This Article concludes with recommendations for other countries that are considering enacting domestic laws that protect the right to legal personhood and legal capacity of all people with disabilities in full compliance with Article 12 of the CRPD.

Keywords: disability; legal capacity; equal recognition under law; guardianship; supported decision making; human rights

JEL Classification: K33