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HFHR’s opinion on legal incapacitation

Incapacitation results in far-reaching interference with a person’s rights and freedoms. The use of this measure results in the deprivation or limitation of a person’s capacity to perform acts in law. Current solutions in this respect are contrary to constitutional and international standards for the protection of the rights of people with intellectual or mental disabilities, the HFHR emphasised in a published opinion statement.

“The Convention on the Rights of Persons with Disabilities excludes the use of incapacitation mechanisms. Moreover, according to the case law of the European Court of Human Rights, this measure should be applied in very exceptional situations where all other means of supporting a person in living an independent life have failed”, the HFHR opinion statement reads.

Need for legal reform

The present model of incapacitation does not meet the needs of a diverse group of people, such as people with disabilities. Not every intellectual or mental disability should require interference in the capacity to perform acts in law. The existing regulations should be replaced by solutions that provide for the possibility of a personalised and proportionate response to the difficulties encountered by people with intellectual or mental disabilities in managing their own affairs.

International guidelines point to the obligation to support people with mental or intellectual disabilities in their independent enjoyment of their capacity to perform acts in law to ensure that they have a real opportunity to exercise the autonomy and freedom to act that is vested in every human being. However, the current shape of the institution of legal incapacitation is fully in line with the model of foster decision-making”, explains Jarosław Jagura, a lawyer working for the HFHR.

“The number of legally incapacitated persons in Poland is constantly growing, which is related, among other things, to the ageing of our society. The legislator should respond to this situation and put in place appropriate support mechanisms for these people. Although legislative work has been undertaken to reform the institution of incapacitation, no changes have been made to this effect so far”, Mr Jagura adds.

Interpretation of legislation in line with international standards

In the absence of a reform of the institution of incapacitation, the courts have a particular obligation to interpret the rules on incapacity in the light of standards protecting the rights of persons with disabilities, guaranteeing respect for their dignity and autonomy, their right to live independently and to be involved in society, and to respect for their private life, the HFHR emphasises in its opinion statement.

An example of this approach is a 2015 ruling of the Court of Appeal in Katowice (case no. V ACa 109/15), in which the court dismissed the request for incapacitation by referring to international human rights standards.

The Court noted that “Article 30 of the Constitution and human rights provisions of international law are violated in each and every case when full or partial legal incapacitation is ordered and this does not lead to material improvement of the legal or factual situation of the incapacitated individual”.

The opinion statement on legal incapacitation and its consequences is available here.

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