Art. 12 is the core of the Convention on the rights of persons with disabilities (CRPD): for the first time, the right of the persons with disabilities to equal recognition before the law and the related paradigm of universal legal capacity are explicitly recognized by a specific human rights treaty. This right is concerned with legal personality which consists of both the ability to bear rights and duties under law and legal capacity: its recognition is a key element in order to consider persons with disabilities properly subjects – instead of objects – of law. Requiring a correct implementation, art. 12 necessitates a deep analysis of how legal systems themselves enable and disable people as legal actors. In the essay, the Author first highlights some of the key issues concerning art. 12, whose interpretation is still contested in literature, especially in relation to the possibility of abolishing all the forms of substitute decision making in favor of a completely supported process. After that, she analyses the main aspects of the Italian legal instrument which better embodies the perspective of art. 12, that is the limited guardianship (amministrazione di sostegno), focusing on the roles of the actors relationally involved in the process of support as well as on some criticisms concerning the features of the instrument as well as the Italian legal culture.

Disabilità e capacità. Alla ricerca di una sintesi

Maria Giulia Bernardini
2019

Abstract

Art. 12 is the core of the Convention on the rights of persons with disabilities (CRPD): for the first time, the right of the persons with disabilities to equal recognition before the law and the related paradigm of universal legal capacity are explicitly recognized by a specific human rights treaty. This right is concerned with legal personality which consists of both the ability to bear rights and duties under law and legal capacity: its recognition is a key element in order to consider persons with disabilities properly subjects – instead of objects – of law. Requiring a correct implementation, art. 12 necessitates a deep analysis of how legal systems themselves enable and disable people as legal actors. In the essay, the Author first highlights some of the key issues concerning art. 12, whose interpretation is still contested in literature, especially in relation to the possibility of abolishing all the forms of substitute decision making in favor of a completely supported process. After that, she analyses the main aspects of the Italian legal instrument which better embodies the perspective of art. 12, that is the limited guardianship (amministrazione di sostegno), focusing on the roles of the actors relationally involved in the process of support as well as on some criticisms concerning the features of the instrument as well as the Italian legal culture.
Bernardini, Maria Giulia
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11392/2437093
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