Fighting legal death: The European Union must urge Member States to eliminate guardianship regimes

Throughout the European Union, thousands of people with disabilities are denied their rights solely based on their perceived lack of “capability” and are placed at the mercy of legal guardians who may or may not have their wellbeing in mind. People under guardianship cannot get married, vote in elections, decide where to live or how to spend their money. They often suffer from low self-esteem, as they are disempowered, disengaged and sometimes even abused. As guardianship itself, the damage is often irreversible.

“Legal death,” as guardianship is also called, is a common practice, despite the EU having extremely clear competences when it comes to combating discrimination based on disability. As Prof. Theresia Degener, Vice-President of the United Nations Committee on the Rights of Persons with Disabilities, said: “We have yet to find one country that has fully implemented the right to have and to exercise full legal capacity”.

This is not because of a lack of alternative local solutions. Inclusion Europe has developed an entire website dedicated to presenting different models of supported decision-making, that could apply to a range of areas – from banking to health, personal relationships or housing. As the different presented practices show, support can be both formal and informal, provided by family members, friends or peer-supporters and can vary in type and intensity. For a person with an intellectual disability, support could include providing information in plain language or easy-to-read, explaining or trying different options, or, in some cases, articulating an opinion based on a deep knowledge of the will and desires of a particular individual, which stems from a long-lasting trusting relationship.

According to Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), which the EU ratified in 2010, all people should have the right to take decisions regarding their own lives and be recognized before the law on an equal basis with others. Still, with most European countries still promoting guardianship regimes, it is an area where the European Union could do a lot more to promote the implementation of the Convention. Inclusion Europe, together with the European Disability movement, has highlighted this important issue in the Alternative Report on the Implementation of the UN Convention on the Rights of Persons with Disabilities, a document prepared to help the CRPD Committee review the progress of the European Union in implementing the human rights treaty.

On 2 April 2015, Inclusion Europe will be in Geneva to voice its main concerns on the measures taken by the European institutions to ensure that the rights of people with disabilities are considered in all relevant legislative proposals, as well as in the implementation, monitoring and evaluation of EU policy. Without the guarantee of legal capacity, we believe European citizens with intellectual disabilities will never be able to fully enjoy their rights on an equal basis with others. It is crucial that the CRPD Committee sends a strong message to the EU that guardianship is no longer acceptable, and to urge its Member States to combat discrimination against persons with intellectual disabilities by eliminating guardianship regimes altogether. Such a measure should be complemented by securing funding for self-advocacy groups in Europe to take an active role in driving legislative reforms towards the implementation of supported decision-making. Moreover, the EU should promote the collection of data and exchange of good practices on the transition from substituted to supported decision-making processes, and should invest in expanding the knowledge of Member States on this matter. The European Union has the power and legal competence to stop this from happening. It is high time it showed some clear commitment.

For more information, please contact Silvana Enculescu, Inclusion Europe Communications Manager, at