WHEN we order food through platforms such as Swiggy or Zomato or book tickets on BookMyShow, we exercise legal capacity. Legal capacity is the ability to make legally binding decisions and have them recognised under the law.Under the law, you and the service-providing platform have a contractual agreement that helps you exercise and uphold your rights. Legal capacity is fundamental to autonomy and personhood and allows individuals to make choices and act on their own behalf.Legal capacity underpins how we navigate daily life, from simple actions such as purchasing meals (paying money and buying food) to complex decisions about finances (opening a bank account) or healthcare (whether to accept or reject a treatment).The exercise of legal capacity depends on decision-making abilities, and the law typically presumes that individuals with a ‘sound mind’ have legal capacity. For persons with disabilities, especially with intellectual disabilities, legal capacity exists as a human right in rights-based frameworks but is missing in their lived experience..The exercise of legal capacity depends on decision-making abilities, and the law typically presumes that individuals with a ‘sound mind’ have legal capacity..A note on decision-making capacityIn persons with intellectual and developmental disabilities, the decision-making capacity may sometimes be compromised. This can make it difficult for them to exercise their rights independently, particularly in decisions related to finances, healthcare, or other significant matters.Therefore, it compromises their legal capacity temporarily or permanently. For instance, a person with developmental disability may need support to navigate complex financial transactions or medical decisions but can independently perform daily transactions, and choose their daily routines or personal preferences..Beyond noble intentions: The Supreme Court’s quest for healthcare safety.To provide a system of support for persons with disabilities, the law provides for the appointment of guardians through the framework of legal guardianship. In India, legal guardianship is governed by the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation (called intellectual disability today), and Multiple Disabilities, 1999; the Rights of Persons with Disabilities Act, 2016; and the Mental Health Act (2017).While these laws share the goal of supporting individuals with disabilities, the Rights of Persons with Disabilities Act reflects a shift toward a more inclusive, rights-based framework. However, the older National Trust Act still adheres to a more paternalistic approach.From ideology to practice— the role of legal guardianThe National Trust Act was enacted before India ratified the United Nations Convention on the Rights of Persons with Disabilities. As a result, it did not align with the principles of recognising persons with disabilities as individuals with rights independent of their guardians. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities states that everyone shall be given equal recognition under the law..To provide a system of support for persons with disabilities, the law provides for the appointment of guardians through the framework of legal guardianship..However, the National Trust Act’s framework stemmed from viewing persons with disabilities as dependent on their guardians, thereby limiting their recognition as autonomous rights-holders. The National Trust Act was established to provide a ‘financial safety net’ for individuals with developmental disabilities after their guardians' lifetime, reinforcing the assumption that such individuals are inherently dependent on their parents or guardians and lack the ability to live independently.In contrast, the Rights of Persons with Disabilities Act, enacted in 2016, reflects the principles of the United Nations Convention on the Rights of Persons with Disabilities. It prioritises the preservation of autonomy, independence and personhood for persons with disabilities, emphasising supported decision-making over dependency on a legal guardian. Under the Rights of Persons with Disabilities Act, guardianship is limited in scope and aims to support the decision-making process of persons with disabilities rather than substitute it..Lack of Braille-embossed packaging on medicines hampers accessibility among India’s visually impaired population.The coexistence of these laws has aided the discrepancies in practice. The dissonance is also seen in the role of the legal guardian under each of these laws.In the National Trust Act, guardians play the role of substituting the decision-making capacity of a person with a disability by making decisions on their behalf, thus effectively taking away their legal capacity in toto.The Rights of Persons with Disabilities Act allows for only limited guardianship where the role of the guardian is to support and scaffold the decision-making process for situations where the guardian has been appointed.Here, the guardian is supposed to act on behalf of the person with a disability but only carries out the wishes of the person with the disability. But in practice, supported decision-making is rarely seen, and guardians substitute the decisions of persons with disabilities with their own decisions..Socio-cultural factors and legal guardianshipIn a recent study the authors conducted about legal guardianship for persons with developmental and intellectual disabilities, we found that there are major challenges in implementing the Rights of Persons with Disabilities Act in its intended shape and form.The first challenge is that there is poor awareness of the concepts of legal capacity and legal guardianship among parents of young adults who are transitioning into new identities as adults.Secondly, social and institutional barriers also curtail independence and autonomy because of societal attitudes towards persons with disabilities as lacking the legal capacity to act autonomously— pursue a career, operate a bank account and even own property. Thus, guardians (parents) tend to become overprotective and act on behalf of their wards with disabilities, thereby taking away their legal capacity and autonomy.This lack of awareness coupled with social reinforcements of deficient capacity has made it difficult to implement the provisions of the Rights of Persons with Disabilities Act to ensure full legal capacity for persons with disabilities..Five years of the HIV/AIDS Act, 2017: An assessment— Part 2.So how can we break the cycle? The way forward Consolidation of laws: A unified law could be formulated to incorporate various types of guardianship, emphasising supported decision-making frameworks instead of a substituted decision-making approach.This approach would also require a standardised adjudicating authority to assess and determine the need for guardianship, ensuring consistency. Awareness creation: Awareness creation on legal capacity and supported decision-making frameworks and the practice among various stakeholder groups such as parents, medical and legal professionals, and various institutions including financial, educational and employment is the key to autonomy and independence for persons with intellectual and developmental disabilities. Breaking systemic barriers: Awareness creation alone will not empower persons with disabilities. There is a need to create a digital and physical barrier-free environment to exercise their legal capacity freely..The coexistence of certain laws has aided the discrepancies in practice. The dissonance is also seen in the role of the legal guardian under each of these laws..The recent Supreme Court judgment in Rajive Raturi versus The Union of India, directing compulsory accessibility standards across the country, makes the ability to live autonomously more promising for persons with disabilities.But behavioural changes recognising autonomy and personhood for persons with disabilities must follow the legal implementation, and therein lies the key to change.
