Perlin on the CRPD and Guardianship

Just out: Michael L. Perlin, “Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law, 117 Penn. St. L. Rev. 1159 (2013).  The abstract:

In many nations, entry of a guardianship order becomes the “civil death” of the person affected because persons subjected to such measure are not only fully stripped of their legal capacity in all matters related to their finance and property but are also deprived of many other fundamental rights, including the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association, and the right to marry and have a family. The United Nations’ ratification of the Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities, and in no area is this more significant than in the mental disability law context. And there is no question that the CRPD speaks to the issue of guardianship. This article examines what impact, if any, the CRPD and other international human rights documents will have on guardianship practice around the world. This question is of great importance given the common usage of this status and the lack of procedural safeguards that attend the application of this status in many nations.

This article begins by examining why guardianship is considered “civil death” in much of the world before discussing the possible impact that the CRPD will have on the application of guardianship laws. Issues discussed include the need for some mechanism to insure the appointment of counsel to persons facing guardianship; the need for a mechanism to insure that, in those cases in which guardianship is inevitably necessary, “personal” guardians will be appointed instead of institutional ones; the need for domestic courts—in all parts of the world—to take these issues seriously when they are litigated on a case- by-case basis; and the inevitable problems that will arise in the Asia and Pacific region, where there is no regional court or commission at which litigants can seek CRPD enforcement. Finally, this article considers the impact of therapeutic jurisprudence on the questions at hand, and concludes by looking again at the CRPD as a potentially emancipatory means of restructuring guardianship law around the world.