Legal capacity law reform in the Czech Legal capacity law reform in the Czech Republic and rights of persons with Republic and rights of persons with

disabilitiesdisabilities

Conference on Autonomy and InclusionCopenhagen, 7- 8 June 2012

Andrea BaršováOffice of the Government, Department for Human Rights and Minority Protection. Czech Republic

Reasons for legal capacity law and Reasons for legal capacity law and guardianship reformguardianship reform

Limitation and withdrawal of legal capacity used frequently and routinely, which created several thousands of „second-class citizens“

(In 2007, there were in the Czech Republic according to the Ministry of the Interior 3.893 persons whose legal capacity was limited and 23.283 persons whose legal capacity was withdrawn).

Widespread low respect to autonomy of persons with intellectual disabilities and persons with mental health problems

Both the procedural and factual protection of rights of persons with intellectual disabilities and persons with mental health problems was insufficient

Risk of abuse

Incentives and opportunities Incentives and opportunities for a changefor a change

The Ratification of the Convention on the Rights of Persons with Disabilities in 2009 (Art. 12, Art. 19)

(Implemented by the adoption of the National plan for the creation of equal opportunities of persons with disabilities 2010 – 2014, target 5.1. new legal protection for persons with intellectual disabilities and mental health problems)

The new Civil Code (10 years of work, adopted in 2012, will enter into force on 1January 2014, follows the paradigm shift of the Convention, persons with

disabilities not viewed as objects of charity, medical treatment and social protection but subjects with rights , capable of making decisions for their lives)

The jurisprudence of the Constitutional Court of the Czech Republic (II.US 2630/07, 13.12.2007)

Agents of changeAgents of change

Ministry of Justice and the team of Civil Code drafters (Prof. Karel Eliáš)

Government Committee for Persons with Disabilities (advisory body to the Government)

Civil society advocates (national and transnational): e. g. Liga lidských práv (Human Rights League), Mental Disability Advocacy Centre, National Council of Persons with Disabilities

Other stakeholders (e. g. Ombudsman, Government Council for Human Rights)

New Civil Code institutesNew Civil Code institutes

NEW: Prior legal declaration (§§ 38- 44) NEW: Supported decision making (§§ 45- 48) NEW: Representation by a member of the household (§§ 49

- 54) REFORMED: Guardianship (newly also available without

limiting of legal capacity) REFORMED: Rules for limiting legal capacity (withdrawal of

legal capacity not possible anymore; limitation only in interest of the person concerned, provided that supported decision making and the representation by a member of the household are not sufficient; the judge must see the person; his / her opinion must be established )

Prior declarationPrior declaration

Preventive measure„A person who is expecting that he / she will not be able to

exercise his / her legal capacity in the future can express his / her will that his / her affairs are carried out in particular way or by a particular person or he / she may express a wish that a particular person becomes his / her guardian“.

(Covers e.g. Alzheimer, dementia cases)

Supported decision makingSupported decision making

Alternative to the current system of substitute decision making Implements Art. 12, para 3 of the Convention

„If a person needs support in decision making, because a mental disorder causes him / her difficulties in it, even if he / she is not limited in legal capacity, he / she can agree with a supporter on providing support; there may be more supporters“.

Effective safeguard: The agreement needs to be approved by the Court ! (Art 12 para 4 of the Convention)

Representation by a member of the Representation by a member of the householdhousehold

Regulates legal representation of an adult person Is limited to everyday life situations Aims to implement Art. 19 of the Convention (Living

independently and being included in the community )„If mental health problems are an obstacle to independent

exercise of legal capacity of a person, who has no other representative, he / she may be represented by his / her descendant, sibling, spouse or a partner or a person who lived with the represented person at least three years in a common household.“

Effective safeguard: The establishment of representation needs court approval. Before issuing a decision, the court makes necessary endeavours to establish the opinion of the represented person, including the way of communication that the represented chooses.

Thank you for your attentionThank you for your attention!!

Contact: barsova@vlada.cz or

+420 224002624