Open letter to the Chair of the Justice Commission of the Mexican Senate

Senator Julio Menchaca,

Chair of the Justice Commission of the Mexican Senate

We would like to express our deep concern over the chapter on legal capacity of people with disabilities in the current bill to create a Unified Civil Procedure Code for Mexico. We strongly urge the Justice Commission of the Mexican Senate to reject this reform because it contradicts Mexico’s human rights obligations under article 12 (2) of the Convention on the Rights of Persons with Disabilities (CRPD), which Mexico ratified in December 2007. The bill could also contradict multiple Supreme Court rulings that found that guardianship systems are prohibited under the Mexican Constitution.

As currently drafted, the bill conflates supported decision-making, whereby persons who would like support in making legal and other decisions have the right and can access systems to realize this right, with substitute decision-making, whereby another person has the authority to make decisions on behalf of a person deprived of the right to do so.

Specifically, article 480 of the bill allows a person with a disability to request supported decision making, but also allows others to request support for a person with a disability, without requiring the person concerned to consent. Those who can make such a request include spouses, descendants, parents and grandparents, aunts, uncles, nephews, nieces, in-laws to the second degree, a previously appointed guardian, heirs, and others. It also allows DIF (Sistema para el Desarrollo Integral de la Familia) and the public prosecutor’s office to make such a request for support for a person. 

However, the system is not designed for genuine supportive decision making and instead replicates guardianship, or substitute decision-making.

Article 483 of the proposed bill requires that a person with a disability seeking supportive decision making (or for whom others are seeking such support) undergo a medical evaluation and conditions the person with a disability’s ability to appoint a supporter of their own choosing to the level of autonomy they are deemed to have. If the medical examination determines that an individual is not fit to make such a selection, a judge is authorized to appoint a so-called supporter, without the consent of the person concerned, although the preference would be for someone the person selected themselves. The judge also determines the scope of the support provided, without the consent of the person concerned.

Article 483 specifies that the court may, as a last resort, rule that the support person should control all the person with a disability’s assets and administer their property. The court could also rule on whether the person with a disability needs support to perform parenting duties. The person with a disability has the right to appeal against the appointment of the so-called supporter.

Such a system is not a genuine supported decision-making system, whereby a person retains autonomy to make decisions themselves, with support as necessary. Instead, it replicates a substitute-decision making system, or guardianship, in violation of Mexico’s international human rights obligations and in contradiction of Mexico’s constitutional court rulings.

Mexico’s international human rights obligations

Article 12(2) of the CRPD specifically provides a right to legal capacity for persons with disabilities, which includes the right to exercise all of their rights and have their decisions recognized by the law on an equal basis with others and without discrimination based on disability.[1]

The Committee on the Rights of Persons with Disabilities (CRPD Committee), which monitors implementation of the treaty, has urged Mexico to ensure any reforms on legal capacity are rights-respecting. In its 2014 concluding observations, the committee recommended that the Mexican government “suspend any legislative reform that would perpetuate a system of substitute decision-making and… take steps to adopt laws and policies that replace the substitute decision-making system with a supported decision-making model that upholds the autonomy and wishes of the persons concerned, regardless of the degree of disability.”[2] It also recommended that, in consultation with organizations of persons with disabilities and other service providers, Mexico “review all federal and state legislation in order to eliminate any restriction of rights stemming from a declaration of legal incompetence or on the grounds of a person’s disability.[3]”

According to the CRPD Committee, all people, including people with disabilities, maintain a right to legal capacity "simply by virtue of being human" and people can therefore not be stripped of it.[4] The exercise of legal capacity is "the key to accessing meaningful participation in society" for all persons, including persons with disabilities.[5] For example, the CRPD Committee has found that legal capacity "acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work," while the denial of legal capacity has led to numerous violations of these rights for persons with disabilities.[6]

The CRPD Committee has repeatedly found that legal regimes that deprive persons with disabilities of their legal capacity and assign others to make decisions and exercise rights on their behalf - such as guardianship - violate article 12 of the CRPD and should be abolished.[7] The Committee noted that where “a person’s disability and/or decision making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law,” such provisions are a “discriminatory denial of legal capacity” in violation of article 12 of the CRPD.[8]

The CRPD rejects the notion that persons with disabilities are unfit to exercise agency and make decisions and makes it clear that the will and preferences of the person should be respected at all times.[9] A person’s mental capacity and ability to make decisions can vary depending on environmental or social factors. Instead, CRPD article 12(3) requires that states provide support when needed and requested to persons with disabilities so that they can exercise their rights, express their own will and preferences, and make important life decisions for themselves.[10]

Supported decision-making is a system for those who want assistance in making decisions or communicating them to others. Measures relating to support for the exercise of legal capacity should include appropriate safeguards to prevent abuse.[11] Support for persons with disabilities can take various forms and can include: accessibility measures and reasonable accommodation in understanding information and consequences of legal acts; provisions of advance directives; and the appointment of one or more support persons chosen by the person concerned.

According to the CRPD Committee, in exceptional cases, when it is not possible to determine the will and preferences of the person, even after serious and sustainable efforts have been made, the standard of the “best interpretation of will and preferences” must apply, instead of any “best interest” determinations. This respects the rights, will, and preferences of the individual; the “best interests” principle is not a safeguard for adults that complies with the CRPD.[12]

In line with arguments stated above, the Mexican Supreme Court has ruled that guardianship regimes are against the Mexican Constitution. In the most recent ruling, issued in June 2021, the first chamber of the Supreme Court ruled that guardianship is unconstitutional.[13]

The Senate should not miss the opportunity to adequately recognize full legal capacity for people with disabilities on an equal condition with others, and the right to access supported decision-making when they so desire in the proposed draft unified civil procedure code. The Senate needs to closely consult with organizations representing people with disabilities. The processes to discuss the bill should comply with the minimum standards, principles, and guidelines of the Mexican government’s international obligation to carry out close consultations with people with disabilities through the organizations that represent them, provided for in CRPD articles 4.3 and 33.3.

The absence of a consultation process could lead to a failure to recognize current fundamental rights within Mexico’s legal system, notably the right of people with disabilities to autonomy and to make their own decisions.[14]

Organizations: