Using Domestic Law to Move Toward a Recognition of Universal Legal Capacity for Persons with Disabilities

Abstract

This symposium explores the meaning of personhood as it is or should be applied to persons with disabilities. This panel focuses on the concept of legal capacity-the ability to make decisions about one’s life, to exercise agency, and to have those decisions recognized by third parties. For my part, I would like to discuss how we might use domestic law — specifically the integration mandate of Title II of the Americans with Disabilities Act and substantive due process — to help us move toward a recognition of universal legal capacity regardless of disability and bring meaningful changes to domestic guardianship regimes. While Article 12 of the U.N. Convention on the Rights of Persons with Disabilities recognizes the right to universal legal capacity, the United States has never ratified that treaty, and domestic law in this area is still underdeveloped. This talk seeks to push the boundaries of the Americans with Disabilities Act to argue, as I have in the past, that guardianship constitutes a failure to provide assistance with decision making in the least restrictive manner and to suggest that principles of substantive due process may hold some promise for helping to both re-conceptualize our thinking about guardianship and to bring changes to guardianship practice. We should understand our social and legal obligation to persons with limitations in decision making abilities in the same way that we understand our obligation to treat those with physical disabilities — that we are obligated to provide necessary services and supports to enable these individuals to live as independently as possible, so that they can participate and flourish as full citizens. The right to exercise legal capacity must be understood as a basic right of personhood.

Keywords: legal capacity, disability, Americans with Disabilities Act/ADA, Convention on the Rights of Persons with Disabilities, and substantive due process