Advance directives: Addressing the obligations of support as part of the right of a person with disabilities to equal recognition before the law?

Abstract

Depending upon how they are regulated in domestic law, advance directives (ADs) can enable persons to make decisions that have legal effect in the future as directed in the AD. There is some agreement in the academic literature that ADs are a legitimate way of giving effect to the obligations arising from Article 12 (3) of the United Nations Convention on the Rights of Persons with Disabilities to take appropriate measures to provide access by persons with disabilities (PWDs) to the support they may require in exercising their legal capacity. It is the purpose of this article to question when and how ADs address the obligations of support arising from Article 12 (3), concluding that it cannot and should not be assumed that ADs address those obligations only because they embody and give effect to their maker's agency. The article instead highlights the questions that must be posed to obtain legal certainty as to when and how ADs will be a form of Article 12 (3) support. The article also refutes some of the instances in the academic literature when ADs have been presented as support, while offering an account as to how the regulation of ADs should be reconsidered in order to specifically address the obligations arising from Article 12 (3) both when PWDs can and when they cannot communicate their wishes to others.

Keywords: Advance directives; Exercising legal capacity; Human rights; Support; UNCRPD.