The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?

20 Pages Posted: 13 May 2016

See all articles by Eilionóir Flynn

Eilionóir Flynn

National University of Ireland, Galway (NUIG); University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Anna Arstein-Kerslake

University of Melbourne - Law School

Date Written: 2014

Abstract

In this Article, we explore a plausible legal framework within which to ground a support model of legal capacity and fully replace regimes of substituted decision-making. We ground our argument in the lived experience of people labeled with a disability. We focus particularly on individuals with cognitive disabilities, as they are generally more likely to have their decision-making ability called into question, and consequently, to have their legal capacity denied. However, we claim that such a system of support will ultimately benefit all individuals, not just persons with disabilities. The Article further examines reform efforts underway and the contributions of legislative change and judicial activism. Since the entry into force of the CRPD, many countries have begun to reform their laws on legal capacity, as described below in Section III. While significant challenges remain to ensure the full replacement of substitute decision-making regimes, international developments described in Sections III and IV, are clearly trending towards the recognition of support to exercise legal capacity.

Keywords: disabilities, support

JEL Classification: K00, K39

Suggested Citation

Flynn, Eilionóir and Arstein-Kerslake, Anna, The Support Model of Legal Capacity: Fact, Fiction, or Fantasy? (2014). Berkeley Journal of International Law (BJIL), Volume 32, Issue 1, 2014; U of Melbourne Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2779392

Eilionóir Flynn

National University of Ireland, Galway (NUIG) ( email )

University Road
Galway, Co. Kildare
Ireland

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Anna Arstein-Kerslake (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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