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Article
Legal Capacity for All: Including Older Persons in the Shift from Adult Guardianship to Supported Decision-Making
Fordham Law Review
  • Rebekah Diller, Benjamin N. Cardozo School of Law
Publication Date
1-1-2016
Abstract

For the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law pose a more fundamental challenge to the institution. Under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), governments may not deprive individuals of their “legal capacity”—or right to make decisions and have those decisions recognized as legally binding—on the grounds of disability. In the wake of the CRPD, the concept of supported decision-making has gained growing acceptance as an alternative to guardianship. But, to date, supported decision-making has not taken hold to quite the same degree—in both the theoretical discussions and in practice—as an alternative for older adults who may be vulnerable to guardianship. This Article argues that the paradigm shift away from guardianship to a right to legal capacity can and should apply to older persons who would otherwise be at risk of guardianship. It offers a normative argument for supported decision-making rooted in the particular concerns of older adults facing the loss of their rights and then suggests a number of contexts in which a shift away from guardianship for older persons may be achieved most readily.

Publisher
Fordham University School of Law
Keywords
  • legal capacity,
  • reform,
  • disability,
  • Convention on the Rights of Persons with Disabilities (CRPD),
  • guardianship,
  • older adults,
  • supported decision-making,
  • dementia
Disciplines
Citation Information
Rebekah Diller. "Legal Capacity for All: Including Older Persons in the Shift from Adult Guardianship to Supported Decision-Making" Fordham Law Review Vol. 43 (2016) p. 495
Available at: http://works.bepress.com/rebekah-diller/27/