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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.

Publication Date

2016

Volume

43

Publisher

Fordham Law Review

First Page

495

Keywords

legal capacity, reform, disability, Convention on the Rights of Persons with Disabilities (CRPD), guardianship, older adults, supported decision-making, dementia

Disciplines

Elder Law | Law

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