Letter to Mexico Federal Congress Regarding Full Legal Capacity Recognition

Senator Alejandro Armenta Mier

President of the Senate and the Permanent Commission

Deputy Santiago Creel Miranda

President of the Lower House

Senator Olga Sánchez Cordero

President of the Justice Commission of the Senate

Deputy Felipe Fernando Macías Olvera

President of the Justice Commission of the Lower House

Your Excellencies,

We write to commend the Federal Congress for approving the new National Civil and Family Procedure Code (hereinafter CNPCF) which recognizes full legal capacity for everyone. Congress was responsive to concerns raised by many organizations of people with disabilities, human rights organizations, and national and international experts on disability rights. The new code, which will be applicable through all Mexican territory and jurisdictions, provides high standards to ensure every Mexican 18 years or over is entitled to exercise their full legal capacity, including access to supported decision-making if they decide to do so.

It is particularly important that Congress has taken a universal approach to ensure legal capacity, which applies to every person, not only to people with disabilities and older persons, who data shows are at a greater risk of losing their legal capacity. Recognizing the right to full legal capacity is a cornerstone to ending many human rights abuses against people with disabilities and older persons. As the CRPD Committee has recognized, legal capacity is a threshold right that many other rights depend on —for instance, the right to live independently in the community, own property, have a family and participate in the political process, amongst others.

The new CNPCF creates the foundation for further reforms in civil legislation that need to be carried out by state legislatures. We recognize that the Congress has exercised its authority, at the federal level creating the only procedure by which a support person can be appointed to enable someone to exercise their legal capacity when there is no information on their will and preferences. By legislating on this procedure, Congress gives a clear and strong directive to state legislatures preventing them from creating institutions that could amount to restricting the rights of people with disabilities or other persons, which would conflict with Mexico’s human rights international obligations.

The federal Congress has taken a strong step in the right direction to fully recognize the rights of every Mexican to decide their own life, including those that are more marginalized and excluded. We urge  Congress to adopt a resolution calling on state legislatures to complete the necessary amendments in their civil legislation, including notary public legislation. To this effect Congress should make clear that:

1. All people 18 years old or over have the right to full legal capacity and to access supported decision-making if they so decide.

2. Supports for exercising legal capacity should include support in communication, comprehension of legal transactions and their consequences, or and in the expression of preferences or other activities related to the exercise of legal capacity. This support can be provided for any lawful act including those that require the direct intervention of the person, like creating a will, getting married, filing for divorce.

3. Following the CNPCF, it’s crucial that state legislatures ensure that support cannot be imposed on anyone or made as a precondition to exercising their legal capacity. Individuals should have the right to make decisions regarding all matters concerning them even if they do not have support. There should be no requirement for evaluating their  functionality, level of disability, mental capacity, or any other criteria to determine their  right to decide.

4. Including advanced directives as a means of exercising legal capacity is crucial. People should have the right to appoint support persons in provision of future support requirements. Advanced directives should specify the form, scope, duration and general directives the support person should follow, they should also determine  the moment in which they enter into force, and  the safeguards the person wants to establish. Furthermore, advanced directives could also determine those individuals who should never act as supporters.

5. The state civil legislation reform should establish robust safeguards to prevent abuse and undue influence and ensure supporters are complying with their mandate. Safeguards could include the appointment of a third party to overlook and monitor support being provided by the supporter. However, it is crucial that safeguards never substitute the will and preferences of the person concerned.

6. State codes should explicitly outline the specific obligations of support persons, including the responsibility to provide all the relevant details pertaining to the legal transaction at hand to the best of their knowledge.  Support persons should also be required to accurately and reliably communicate the will and preferences of the person they are supporting to relevant parties, if agreed upon in the support agreement. Additionally, supporter persons should also have a duty of confidentiality, except when a crime is being committed.

7. State codes should clearly establish that individuals who receive support in making decisions  are still fully responsible for all legal transactions they engage, unless it can be proven that they acted due to intentional misguidance or negligent performance of the supporter.  In such cases, the supporter should be held liable for any resulting damages and the legal act should be considered null and void.

8. State legislation should establish that all legal transactions made with supported decision-making are valid. They should only be reversed and considered void when there is evidence that the supporter exercised violence, coercion, undue influence, or acted in bad faith to intentionally misguide the person receiving support.

In addition to reforms to the Civil Code, states should modify their Notary Public legislation in order to fully complete harmonization for the full enjoyment of legal capacity. Therefore we urge Congress to provide recommendations on how to amend Notary Public acts in their resolution. For example, state Notary Public legislation should eliminate any provision that restricts legal capacity for people with disabilities, including deaf and blind people, or people with intellectual disabilities or mental health conditions. Additionally, Notary Public legislation should establish provisions to ensure accessible communications for people with disabilities who require their services. It would also be beneficial to reconsider the role that notary public play in supporting people with disabilities by providing legal advice in plain language and implementing reasonable accommodation measures when needed.

We believe that that the passage of the CNPCF by Congress on this issue was a landmark achievement for Mexico and in the Americas. However, for true empowerment of individuals with disabilities in their day-to-day lives, it is necessary to also establish strong and comprehensive local legislation with specific regulations.

Kind regards,

Organizational signatories:

Individual signatories: