Chapter 3 explains the principle of the indivisibility and interdependence of human rights (‘the principle of indivisibility) as recognising: (a) the equal importance of economic, social and cultural rights with civil and political rights, and (b) the interdependence of rights within and across categories. It explains how the privileging of civil and political rights, including the right to legal capacity, erroneously frames state restraint as always rights-affirming; such framing, in turn, demands the abolition of decision-making by substitutes. It argues that depending on how an adult with cognitive disability is contingently situated even after all supports are provided, they may require a decision to be made by a substitute to fulfil an immediate socio-economic need and to claim their human rights. It argues that Article 12, in requiring supports for legal capacity, is a ‘hybrid’ civil and political and socio-economic right, illustrating and driving the principle of indivisibility in the CRPD.

Chapter 6 argues that in interpreting the right to legal capacity ‘on an equal basis with others’, a substantive notion of inclusive equality must be applied. In doing so, it applies but also critiques General Comment No 6: On Equality and Non-Discrimination, published by the United Nations Committee on the Rights of Persons with Disabilities. Inclusive equality demands recognition of the difference of impairment and associated disadvantages. Once difference is acknowledged, either supported decision-making or decision-making by substitutes may be required to recognise an adult’s legal capacity ‘on an equal basis with others’ and to promote inclusion. This chapter draws on existing commentary explaining the ‘hybrid’ nature of the right to equality in bridging both socio-economic and civil and political rights and driving the principle of indivisibility.

Chapter 2 explains the historical and contemporary policy, legal and human rights contexts for decision-making by, with and for adults with cognitive disability. It describes the dominant narrative in the literature as depicting a journey from paternalism to autonomy, from exclusion to inclusion, and from discrimination to equality, aligned with three widely recognised models of disability – the charity, medical and social models. It explains that the book’s interpretation of Article 12 is founded on the acceptance of a social model of disability that acknowledges the residual impacts of impairment. The chapter explains the limitations of arguments favouring an interpretation of Article 12 as requiring that decision-making by substitutes be abolished. Such arguments privilege autonomy at the expense of other important human rights values and privilege the civil and political right to legal capacity over other civil, economic, political, social and cultural human rights.

Conservatorship of Valerie N. is the next case in this volume. The original 1985 opinion from the California Supreme Court concerned an “adult developmentally disabled daughter,” whose parents wished to have her surgically sterilized because she was (according to the parents) sexually aggressive towards men. Although the original opinion held that the California law did not authorize the sterilization of Valerie the case is nonetheless ripe for a feminist rewrite. Professor Doriane Lambelet Coleman’s feminist judgment demonstrates how feminism requires attention not only to women’s issues in general but also to the woman herself, and not only to childbearing (or not) but also to sexuality separate from its procreative aspects. Professors Cynthia Soohoo and Sofia Yakren’s commentary situates the case in terms of how sexism and ableism shape attitudes towards sexuality, reproduction, and health care decision-making powers of women with disabilities. It also discusses the evolving understanding of capacity to make medical treatment decisions and alternatives to traditional surrogate decision-making.

This chapter begins by evaluating the existing legal framework of supported decision-making and enduring powers of attorney in Ireland. It examines in detail the definition and assessment of mental incapacity, as well as operational aspects of the enduring power such as: the registration procedure, scope of authority; safeguard measures; and assistance in the decision-making process. It then introduces the reform of this area of law that will be brought about by the domestic ratification of the UN Convention on the Rights of Persons with Disabilities – the Assisted Decision-Making (Capacity) Act 2015 (ADMA). The Act puts in place a new legal framework for supported decision-making, statutory expression of a functional approach to capacity, a broader scope of power of attorney, reporting obligations on the attorney and a complaints mechanism in respect of the creation and operation of enduring powers. Although these legislative innovations may theoretically protect persons with cognitive impairments, only a small number of them have commenced operation. There are concerns as to when the entire ADMA will be fully implemented. In the meantime, Ireland may have to rely on similar principles to those set out in the CRPD, which principles are being developed within its existing legislation and case law.

Owing to the dramatic change in Korea’s family structure, the traditional patriarchal family system was legally abolished. A new legal framework is therefore necessary to ensure the traditional care function of the extended family is adequately replaced. This chapter focuses on the reform of Korea’s adult guardianship system and trust system. It first analyses the background of the Trust Law in Korea, which leads to the rare use of non-commercial trusts traditionally. It then discusses the relationship between guardianship and trusts as new legal frameworks, and introduces a new perspective on special needs trust to enhance protection of individuals with cognitive impairment. This chapter also reviews the pilot project for developmental disability trusts run by the Autism Society of Korea. It shows that while the project has attracted significant attention from disabled persons and their family members, there are still several major issues to be addressed for the future development of special needs trust in Korea.

This chapter evaluates the operation of Midwest Special Needs Trust (MSNT), an organisation created to establish and administer special needs trusts. A special needs trust is used as a fiduciary tool to serve persons with disabilities so that their assets do not affect the eligibility of means-tested social benefits. It starts with an account of the history of MSNT, and then examines the specific definitions and requirements of MSNT trust accounts, the roles and responsibilities of the Trustee and co-trustees, and the merits of MSNT. This chapter also considers important aspects of the administration of MSNT, such as the establishment and termination of trust accounts, staffing, fees and expenses, data management, and investment policy. Real-life cases are discussed throughout to show how MSNT helps to improve the quality of life of the disabled. This chapter concludes with thoughts on the future development of special needs trusts, including MSNT service enhancements and other financial tools, to assist the population with disabilities.

This chapter examines adult guardianship and powers of attorney in England and Wales today. Section I considers the origin of modern adult guardianship law in Roman law and traces its development in English common law through to the current legal and institutional infrastructure of mental capacity jurisdiction. It then introduces the procedures of appointing a deputy, and evaluates the safeguards provided by the Office of the Public Guardian. Section II focuses on the policy considerations underpinning the legislation on enduring and lasting powers of attorney, the development of policy and legislation over the past 35 years, and potential developments in the foreseeable future. The author also compares deputyship with attorneyship, and explains the advantages of the former over lasting powers of attorney.