Equal recognition before the law
States Parties re-affirm that persons with disabilities have the right to recognition everywhere as persons before the law.
States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property. (Article 12)
Obligations
This article reaffirms the right of all persons with disability to equal recognition before the law. There are two dimensions to the right, legal personality (that is, a person on whom the legal system confers rights and imposes duties) and capacity to act. Paragraph 1 of the article makes it clear that all persons, including all persons with disability, should be recognised in all situations as persons with rights and duties under the law. Paragraphs 2 and 3 of the article are concerned with the issue of capacity to act. They require State Parties to ensure that persons with disability receive the support they need to exercise their legal capacity on an equal basis with others in all aspects of their lives. The term equal basis with others includes recognition of age-related differences in capacity to act in relation to children and young persons. The emphasis in these paragraphs is on supported decision-making (assisting the person to make a decision personally), rather than substitute-decision making (someone else making a decision for the person). Paragraph 4 sets out minimum safeguards against abuse that State Parties are required to institute in relation to supported decision-making of any kind.
The Australian Government has interpreted the article to include substituted decision-making.
These safeguards include an obligation that the support provider respect the rights, will and preferences of the person being supported, and that the type of support is proportionate to the person’s needs. Support must also be individualised, and free from conflict of interest and undue influence. Support arrangements must also be subject to regular review by an independent and impartial authority. Paragraph 5 of the article focuses on the right of persons with disability to own and inherit property, and to have equal access to financial credit. It provides that persons with disability cannot be deprived of their property without a proper lawful reason. Paragraph 5 is expressed as subject to other provisions of the article, which means that persons with disability are entitled to receive support to manage their financial affairs, and any such support must be subject to safeguards against abuse.
Indicators
• All persons with disability are recognised at all times and in all situations as persons with legal rights and duties.
• Persons with disability are able to exercise legal capacity on an equal basis with others.
• Persons with disability receive any support they may require to exercise their legal capacity. Any such support:
• Persons with disability are able to own and inherit property.
• Persons with disability have access to credit on an equal basis with others.
• Persons with disability are not deprived of their property without proper lawful reason.
• Persons with disability are able to control their own financial affairs on an equal basis with others.
• Persons with disability receive any support they may require to manage their financial affairs. Any such support:
Example
The right to equal recognition under the law will be particularly relevant to people who through their work are involved in:
• Working with people who have experienced discrimination
• Supporting people in getting access to particular government services