What happens after guardianship? A practical approximation to the CRPD implementation in Mexico

Abstract

Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) states the right to equal recognition before the law, therefore introducing the need to guarantee the right of all people with disabilities to legal capacity. Legal capacity is the possibility to carry out binding legal arrangements. Even though the right is the pillar of the CRPD, its implementation by member states has not happen yet. The United Nations Committee on the Rights of Persons with Disabilities has established some standards that can guide States. Based on the treaty and these standards, it is clear that Mexican guardianship infringes on the right to legal capacity and therefore is in violation of the Convention. In this article, we explore possible answers to the common question “If not guardianship, then what?” With that in mind, the article identifies the issues and questions that are to be answered to create a Mexican model for the exercise of legal capacity, and it explores standards that need to be taken into account and better practices in comparative law which allow ideas to foster for the development of a model that is appropriate for Mexico.