A study of the guardianship legislation with emphasis on intellectual disability

Abstract

The same year in which Malta ratified the Convention on the Rights of Persons with Disabilities (the Convention), it also introduced guardianship. Guardianship was deemed to be a legal tool that would improve the quality of life of persons with an intellectual disability while at the same time fulfilling the requirements enunciated within the Convention. The Convention requires the States Parties to grant equal recognition to the legal capacity of persons with disabilities as that of their non-disabled peers. This work shows that the guardianship legislation as introduced by the Maltese legislator is not sufficient to be in line with the Convention’s requirements and that it is based on an incorrect interpretation of Article 12 of the Convention. A correct interpretation of the Convention requires States Parties to move away from measures which uphold a substitute decisionmaking mechanism such as guardianship and introduce supported decision-making mechanisms in their place. Therefore this work looks at the essential elements of the guardianship legislation and how this legal tool affects the legal capacity of persons with an intellectual disability. It then moves to analyse supported decisionmaking mechanisms. Apart from being able to adapt to the needs of the individual supported decision-making mechanisms also allow for persons with an intellectual disability to retain their legal capacity. Therefore this work recognizes supported decision-making as the way forward for Maltese legislation if it is to uphold the provisions of the Convention.