Publication Date



Fordham Law Review


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.



First Page



Fordham University School of Law


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


Elder Law | Law

Included in

Elder Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.