Lithuanian reform on legal capacity: from soviet context towards the modern human rigths standards

Remiantis tarptautiniais visų žmonių lygybės prieš įstatymą, pagarbos žmogaus orumui ir vientisumui principais, fizinės ar psichikos negalios asmenys turi tokias pačias teises kaip ir visi kiti asmenys. Lietuvai ratifikavus JT Neįgaliųjų teisių Konvenciją 2010 m., valstybė prisiėmė tarptautinius įsipareigojimus gerbti, užtikrinti ir įgyvendinti įtvirtintus žmogaus teisių standartus, įskaitant dėl lygybės prieš įstatymą užtikrinimo. Straipsnyje analizuojamos 2015 m. kovo 26 d. LR Seimo priimtos naujos Civilinio kodekso bei Civilinio proceso kodeksų nuostatos, kuriomis siekiama tobulinti galiojančius neveiksnumo ir riboto veiksnumo institutus asmenų su negalia (psichikos, proto) atžvilgiu.All human beings are born free and equal in dignity and rights. This is a basic fundamental principal upon which all the international law is based. Consequently people with mental disabilities too, are entitled to the enjoyment of the same human rights, in equal measure, as all other people. New international human rights treaties and documents are adopted in order to strengthen security and realisation of the rights of most vulnerable groups of people. UN Convention on the rights of persons with disabilities (CRPD) is one of the newest UN’s legally binding instruments, adopted by UN General Assembley in 2006, with its purpose to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. The Convention bringing about a paradigm shift in attitudes of persons with disabilities as “subjects” of all human rights and basis for their protection. One of the most substantive areas that demonstrates major ‘paradigm shift’ of CRPD is provision of equality before the law to all the persons with disabilities. The right to recognition everywhere as persons before the law puts an end to various practices of the removal of rights of persons depending on their health, disability status. After the ratification of CRPD on 27 May, 2010, currently Lithuania has all legal obligations under CRPD, including the provisions on the equality before the law As in majority of other Eastern European region countries, both full guardianship and partial guardianship (curatorship) meant to safeguard the human rights of vulnerable people lacking capacity existed in Lithuania for decades. Recently reform of this legal institute in order to adhere to the international human rights standards and respect the principals of disabled people human rights protection and nondiscrimination. There is no one state up to now with the developed ideal and effec There is no one state up to now with the developed ideal and effective model of supported decision making. Nevertheless is it at the very moment that all the states are reforming their legislative framework and existing pactices to establish the best and most effectives support measures for independent decision making and securing rights of persons with disabilities. On 26 March 2015 there was Law on amendment of provisions of Civil code and Code of civil procedure adopted in Lithuania with the purpose to improve the existing legal institutes of legal incapacity and capacity restriction with regards to pesons with disabilities (intellectual and psychosocial), and to implement the requirements of art. 12 of the Convention on equality before the law and support in decision making for persons with disabilities. Within the new legal provisions there are number of essential safeguards trasnsposed from the art. 12 of the Convention, that should protect persons with disabilities from possible abuse, and secure realisation of their rights. Nevertheless there are major critical aspects with regards the whole legal capacity reform. There remains the term „legal incapacity“ and possibility to declare person as incapable in the new legislative framework. With such a declaration the person looses possibility to realise his/her rights indepedently, and the guardian takes over the decision making powers. Such construct and relationships are still regarded as substituted decision making and in general contradicts the privisions of art. 12 of the Convention. New legal provisions and new institutes of legal protections for persons with disabilities raises number of theoretical and practical challenges for adhering to the international requirements which are discussed in the article