Supports and safeguards for the exercise of legal capacity and autonomy of people with mental, intellectual and psychosocial disabilities: the Michael Bach and Lana Kerzner model

With the CRPD, the States Parties committed themselves to create tools to implement a support model for the exercise of legal capacity (art. 12). However, from various manifestations of the UN, it is perceived a generalized difficulty in doing so. Therefore, the goal of this paper is to analyze the support model proposed by the Canadians Michael Bach and Lana Kerzner, identifying its main points of convergence with the CRPD and which aspects can contribute to the Brazilian legal system. The authors start from the premise that, in the paradigm inaugurated by the CRPD, the recognition of legal capacity cannot be dependent on the existence of cognitive abilities or mental capacity, but rather on the availability and guarantee for all of adequate supports for the exercise of rights. Seeking to more fairly allocate supports and reasonable accommodations, they develop three decision-making statuses: legally independent; supported; and facilitated. The strategies used to achieve the research objectives and to accomplish the objectives are guided by theoretical research. The research is descriptive and exploratory, with a qualitative approach and a bibliographic character. The dissertation is divided into three chapters: in the first one, the extension of the term "support" expressed in art. 12 of the CRPD is addressed, based on official UN documents and doctrinal contributions. In addition, the discussion about the coexistence between supports and substitution of wills gains space. In Chapter 2, there is a complete presentation of the model of supports and safeguards proposed by Bach and Kerzner, as well as a contextualization of the Canadian legal system. Chapter 3 is dedicated to an analysis of the model previously exposed with the CRPD as a reference point, with a critical view and the possible points that could be used by the national system. In conclusion, it is noted that Bach and Kerzner's proposal is close to the premises of the CRPD and contributes to the exercise of legal capacity, since it expands the concept of decision-making skills by combining it with reasonable accommodations and supports. Moreover, the duties of accommodation can ground a right to recognition of supports in decision-making, which must be provided by private third parties and by governments. The Brazilian system deserves reform, among other reasons, because it does not take into account the person's decision-making abilities and its problems are not solved by the TDA (which also faces a serious problem of inapplicability in the courts). Thus, Bach and Kerzner’s model can serve as a parameter for modifications on the national system, because (a) there are clear gains to be made by including these two elements as a reference for the allocation of legal capacity; (b) more neutral and inclusive criteria such as those chosen by the authors are essential to enforce the principle of non-discrimination; (c) a more robust system of safeguards helps to avoid abuses in evaluations in the implementation of support; and (d) the provision of a wide range of support - before, during and after decision making - is essential to ensure the exercise of legal capacity.

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