Daniel Robles scheduled an appointment with Mexico’s tax administration system on June 28 to register for the taxpayer database and obtain his electronic signature as a taxpayer. He had been working as an invited columnist for the disability news outlet Yo También, where he published a piece explaining that he expresses himself by moving his eyes: up means yes; down means no.
To get paid for his work, he needed an electronic signature. Everything was running smoothly until the authorities asked him if he could sign a form on his own; he replied that he needed support because he has cerebral palsy. To Daniel’s surprise, he was told that, since he cannot sign autonomously, the tax administration had no way of determining if he was capable of assuming taxpayer responsibilities and proposed two options: (1) obtain a medical certificate stating that he has the requisite capacity, or (2) appoint his mother as his guardian to sign on his behalf. Both options discriminate against people with disabilities.
Daniel’s experience is far from isolated. On the contrary, at least 7 million people in Mexico with disabilities are at risk of being disenfranchised by authorities who can question their ability to make decisions. Mexico’s Supreme Court has ruled that guardianship is discriminatory and unconstitutional. But Mexico’s civil legislative framework has yet to recognize people with disabilities’ full legal capacity and right to supported decision making in accordance with international human rights law.
Legal capacity has been described by experts as a “threshold right,” instrumental to exercising nearly all of our fundamental rights, such as for health care, marriage, children, property, and associating with others. The importance of legal capacity underscores Mexico’s need for a civil legislative framework that treats people with disabilities fairly.
Fortunately, the ongoing discussions concerning a new National Civil Procedure Code presents a golden opportunity to radically transform the legal capacity framework. When the first draft was presented last December, more than 250 organizations of people with disabilities, human rights organizations, and disability rights experts noted that it established a problematic substitute decision-making model that allow someone to make decisions on behalf of another person, depriving them of their right to do so, like guardianship or conservatorship.
A group of international and Mexican organizations and academics formed a coalition called Decidir es mi Derecho (Deciding is My Right) and prepared an alternative draft of the legal capacity chapter, which was presented to the Senate’s Justice Commission. The coalition also drafted a specific proposal to amend Mexico City civil code and notary public legislation for Mexican states to promote legal capacity.
The core component of these proposals is recognition of legal capacity for all adults and the right to supported decision-making, where people who would like support in making legal and other decisions can access systems to help them as desired. Both documents recognize a right to needed support to communicate, to comprehend of legal transactions and their consequences, and to express preferences or for other activities related to exercising legal capacity. People would be allowed to request and receive support for any legal act, including creating a will, getting married, asking for a divorce, or administering property. If it is signed into law, people like Daniel could appoint someone to support them with communication without having their rights restricted or their capacity to act questioned.
Shifting from substitute to supported decision making would demonstrate Mexico’s understanding of the distinction between mental and legal capacity. According to international human rights law, legal capacity should never be conditioned on cognitive skills. Anyone and everyone should be able to appoint a support person for various activities. Likewise, no one should be forced to accept support; support should not be a prerequisite for any act.
Judicial authorities should be authorized to appoint a support person only if there is absolutely no way of knowing the person’s will and preferences, even after making reasonable efforts to discern their desires. This appointed support person would be required to act according to the best interpretation of the person’s will and preferences.
The law cannot change reality by itself, but we do need a solid legislative framework that recognizes everyone’s right to decide how to conduct their own lives, without discrimination. Daniel needs and deserves a law that protects him against people who think that because he has high support requirements to communicate, he cannot decide what is best for him.
Our lives are made up of choices, and everyone should have full control over their decisions. People with disabilities should not be excluded from making those choices. Instead, the law should empower them and provide them with the support needed to do so.