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Legal Capacity, Guardianship and Supported Decision-Making

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Chapter Summary

This chapter deals mainly with safeguards required during the process of depriving someone of legal capacity, appointing a guardian, contesting decisions made by a guardian, displacing a guardian and reviewing the need for being deprived of decision-making powers. Guardianship issues are human rights issues. The chapter focuses on problematic aspects of guardianship systems and offers some insights through the lens of the ECHR. It offers guidance on how the Recommendation can be used by litigants, lawyers and judges to support Convention arguments in future cases in domestic courts and at the Strasbourg Court. The difficulty from a guardianship perspective is how to create a system that will have sufficient human rights protections, but at the same time will have enough flexibility. The chapter examines typical guardianship proceedings, and makes some suggestions as to how the Court may deal with these issues in future cases.

Keywords: guardianship; human rights; legal capacity; supported decision-making



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