A proposal to eliminate legal guardianship for people with disabilities and older people in Mexico City will be presented to Mexico City Congress on February 16, 2023, in what could be a landmark move for human rights, Human Rights Watch and other rights groups said Feb 15.
Marisela Zúñiga, chairperson of the Human Rights Commission of the Mexico City Congress, will present the bill to reform the city’s Civil Code and Notary Public Act so that it aligns with international human rights law. It would end imposed legal guardianship and give every adult the right to make their own decisions.
“Society thinks we [people with disabilities] are incapable of deciding the most relevant issues about our lives: for instance, where to live and with whom, the type of job we want to have, things we want to buy, or if we want to marry,” said Fernanda Castro Maya, a woman with an intellectual disability who works at CONFE, an organization supporting the proposal. “But if we are provided with the legal right to do so and appropriate access to support, we would be able to participate on an equal basis with others in all issues that concern us.”
Deciding is My Right – a coalition of organizations of people with disabilities, human rights organizations, and academics – proposed the language for the bill, which would eliminate the legal guardianship system. The Mexican Supreme Court ruled legal guardianship unconstitutional in 2021 on the basis that it disproportionately discriminated against people with disabilities. If passed into law, the bill would instead ensure that every adult in Mexico City is granted full legal capacity and benefits, from access to support to make decisions. Support could include someone to help them understand legal transactions, communicate decisions to authorities and third parties, or express their will and preferences.
Since 1928, the Civil Code in Mexico City, as well as other legislation governing legal capacity in all of Mexico, has deprived many people with disabilities of their right to make decisions, wrongly assuming they are not sufficiently mentally capable to make choices. Under this law, people who are deaf, deaf-blind, or have intellectual disabilities or mental health conditions can be placed under legal guardianship, meaning that someone else makes decisions on their behalf. The Convention on the Rights of Persons with Disabilities (CRPD), which has applied in Mexico since 2008, shifted from the medical model of disability to a social model, which considers people with disabilities to be rights-holders and not objects of care or rehabilitation.
“People who have experience with the mental health system in Mexico have experienced firsthand what it means to be discredited and subjected to involuntary treatment and hospitalization, sometimes even restrained with shackles,” said Victor Lizama, member of Mad Pride Mexico, who successfully advocated for a groundbreaking reform establishing full legal capacity within the health system in Mexico. “Informed consent is of the essence to enjoy most human rights, but full legal capacity needs to be expanded to all dominions of law, including civil legislation.”
In addition to the international treaty on the rights of people with disabilities, Mexico has ratified the Inter-American Convention on the Protection of the Human Rights of Older Persons, which establishes the right of older persons to full legal capacity and access to supported decision-making with adequate safeguards to prevent abuse and undue influence. Many older people are currently placed under guardianship. In 2021, in a decision that binds all state and federal courts, the Mexican Supreme Court ruled that guardianship is unconstitutional and violates Mexico’s international human rights obligations.
“Parents of children with intellectual or other disabilities need to have the necessary legal framework to ensure we have instruments to educate our kids so they can achieve independence and be included in the community,” said Katia D’Artigues, a journalist and advocate for disability rights in Mexico City and mother of Alan, a teenager with Down syndrome. “Legal capacity is a cornerstone and a precondition to meaningful disability inclusion.”
“The bill presented today can – and should – be used by the federal Congress and other state legislatures as a model to help them harmonize all of Mexico’s civil legislation with international human rights law,” said Carlos Ríos-Espinosa, associate disability rights director at Human Rights Watch. “All legal instruments at the federal and state level need to be consistent in recognizing full legal capacity. To that end, the federal Congress is working to create the National Civil Procedure Code to include a new supported decision-making model, which is also an essential instrument”