‘Discapacidad y capacidad jurídica de las personas con discapacidad’


One of the most forceful barriers that people with disabilities have faced throughout history, and that, in fact, has contributed to perpetuating the cultural perception of disability, is found in the legal figures of will substitution, such as the interdiction. The law, in this way, contributed to maintaining a stigmatizing and discriminatory state of affairs that for centuries has permeated the social and cultural perception of disability. These types of legal tools are based on the idea that people with disabilities are incapable of expressing their will without putting themselves at risk and putting others at risk. It is assumed that your decisions will always be wrong and that third parties will be able to make them better than they can on your behalf; thus, for the sake of the supposed protection of the person and of traffic and legal certainty, it is estimated that the best way to handle disabilities is through these substitute figures of the will.

Legal capacity is the power that allows people to be subjects of rights and obligations and to make decisions with legal effects. The denial of this capacity to people with disabilities for the mere fact of having it constitutes discrimination and a clear violation of the rights to equality and human dignity. Article 12 of the Convention is the response that international law gave to this situation and constitutes the starting point of a paradigm shift whose final purpose is to allow the real and permanent participation of people with disabilities in the future of society. Disaggregating the numerals that make up the norm, in light of Observation No. 1 of the Committee on the Rights of Persons with Disabilities, allows us to understand what this transformation means.

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