Article 12 of CRPD: Towards Equal Recognition Before the Law? Legal capacity and incapacitation of persons with mental impairments in the light of Article 12 of UN Convention on the R

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Amsterdam Law School

European Private Law LL.M.

Author: Sonia Dominika Rovers ID: 12322318

Article 12 of CRPD: Towards Equal

Recognition Before the Law?

Legal capacity and incapacitation of persons with mental impairments in the

light of Article 12 of UN Convention on the Rights of People with Disabilities in

selected European countries (Poland and Sweden)

Master Thesis written under supervision of

mw. dr. A.E. (Marieke) Oderkerk

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Abstract

The aim of the thesis is to assess whether Article 12 is de facto an adequate tool for improvement of the current legal position of persons with disabilities. The main question to be answered is whether Article 12 of the CRPD should be implemented into national legal systems across Europe, and, if affirmative, how should it influence the already known legal institutions that set limits to legal capacity and independent decision-making. For a better delineation of the issue at scope, the analysis will be based on two contrasting European countries – Poland and Sweden. By the use of comparative legal research method, the thesis is meant to provide an evaluation of the suitability and proportionality of Article 12 of CRPD measures to the goal set in the Convention and, further, present a proposal for regulation at the domestic level. The thesis consists of three main parts. The first part is of an introductory-explanatory character and has been dedicated to the notion of legal capacity and decision-making models in the sphere of private law. The second part discusses the issue of the CDPR’s implementation into the Polish and Swedish legal systems. The approach to legal capacity of persons with disabilities is presented together with the correlation between current legal institutions and their compatibility with CRDP. Finally, the analysis is followed by an extended comparative-conclusory part that consists of two elements. Firstly, the analysed legal systems are being juxtaposed in order to compare and evaluate the present legal models of protection of persons with disabilities. Then, the evaluation of the model of legal capacity introduced by Article 12 CDPR is presented and discussed, after taking into consideration the doubts mentioned in the previous parts of the thesis.

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Introduction

The Convention on the Rights of Persons with Disabilities1_{(further: CRPD, the} Convention) is an international treaty drafted by the United Nations (further: UN) and directed towards the protection of fundamental rights of persons with disabilities. Article 12 of the Convention, which will be the axis of this thesis, compels the recognition of legal personhood and equal treatment under both public and private law for all individuals, despite of their physical or mental limitations. Hence, due to the introduction of the principle of equal recognition before the law, the provision appears to be a key instrument for empowerment of persons with disabilities as it aims to bring a new quality to their participation in legal relationships and in the society in general.

Simultaneously, though very progressive and humanistic, Article 12 is often perceived to be the most controversial among the Convention’s provisions.2_{The main issue related to its} implementation stems presumably from the fact that full legal capacity of persons with impairments is an unbidden novum in many European legal systems, most of them being rooted in the legal tradition of paternalistic protection of persons with disabilities through substitute decision-making institutions.3_{Hence, even though the text of the CRPD came into force in May} 2008, some UN reports show4_{that at the moment of writing this thesis several signatories have} not undertaken sufficient legal actions in order to implement this core provision into their national laws.5

The initial aim of the thesis is thus to analyse the legal issues encountered by the treaty states of the Convention while implementing its Article 12. This could certainly be done from various perspectives and with focus on different aspects of the problem. For instance, one could decide to analyse the role of Article 12 in the constitutional law, where the research would circulate around the matter of a better protection and a more effective enforcement of the equality principle in vertical relationships between the individuals and the state. Another approach could be oriented towards the examination of the influence of the CDPR on the national procedural laws, in both civil and criminal proceedings. Yet, the objective of this thesis is to zoom into the sphere of substantive private law in order to analyse the repercussions of

1_{The United Nations, The Convention on the Rights of Persons with Disabilities, Treaty Series 2515 (2006): 3.} 2_{See: Pearl 2013, p. 7, Arstein-Kerslake & Flynn 2016, p. 471, Dinerstein 2012, p. 1}

3_{Council of Europe - Commissioner for Human Rights (2012), p. 14}

4_{As shown the UN Committee inquiries and reports on the legal situation of persons with disabilities in Spain,} Poland or the United Kingdom.

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implementing Article 12 in the sphere of private law relationships and, especially, its impact on the concepts of legal capacity and incapacitation. Due to the limited space of the thesis, the main stress will be put on limitations to legal capacity of persons with mental disabilities and, further, the validity of such limitations in the light of the rights granted by Article 12.

Then, the ultimate aim of the thesis is to assess whether Article 12 is de facto an adequate tool for improvement of the current legal position of persons with disabilities. The main question to be answered is thus: should Article 12 of the CRPD be implemented into national legal systems across Europe? And, if affirmative, how should it influence the already known legal institutions that set limits to legal capacity and independent decision-making? For a better delineation of the issue at scope, the analysis will be based on two contrasting European countries. On the whole, by the use of comparative legal research method, the thesis is meant to provide an evaluation of the suitability and proportionality of Article 12 of CRPD measures to the goal set in the Convention and, further, present a proposal for regulation at the domestic level. The analysis will be based on a desk research, focusing on current legal solutions, available statistics and relevant literature.

The legal systems to be analysed and compared are Poland and Sweden. Both countries are the signatories of the Convention and the Member States of European Union which, being a party of the Convention itself, somehow doubles the pressure on the states to enforce the provisions of CRDP.6_{Furthermore, both Polish and Swedish legal systems are rooted in the} European civil law tradition which makes them credible objects of legal comparison. In this thesis, Poland will serve as an example of a state that struggles with the implementation of Article 12 at a national level. Maintaining in its civil code the model of substitute decision making, Poland is still at the very beginning of its way to full compliance with the Convention’s principles. By contrast, the second country, Sweden, has introduced the supportive decision-making model way before the ratification of the Convention.7_{Due to this innovative solution,} this legal system is often depicted as an example of how the discord between limited legal capacity and the objectives of Article 12 of CRPD should be managed.

The thesis has been structured as follows. The first chapter is of an introductory-explanatory character and has been dedicated to the notion of legal capacity in the sphere of private law. The concept has been first set in its historical context. The description is followed by the presentation of the contemporary view on the notion, with the special focus on the role

6_{MDAC 2013, p. 39-46}

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of Article 12 of the Convention in this process. Further, the first part touches upon the relationship between mental capacity and legal capacity and the notions of substantive and supportive decision-making models. The legal perspective is combined with a psychological and social understanding of person’s capacity to act and decide. The second part of the thesis, consisting of Chapter 2 and 3, discusses the issue of the CDPR’s implementation into the Polish and Swedish legal systems. The approach to legal capacity of persons with disabilities is presented together with the correlation between current legal institutions and their compatibility with CRDP. Finally, the analysis is followed by an extended comparative-conclusory part that consists of two elements. Firstly, the analysed legal systems are being juxtaposed in order to compare and evaluate the present legal models of protection of persons with disabilities. Secondly, the evaluation of the solutions introduced by Article 12 CDPR is presented and discussed, after taking into consideration the doubts mentioned in the previous parts of the thesis.

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Chapter One - Legal capacity and equal recognition before the law

As mentioned above, this chapter is meant to serve as a brief introduction to the main issues raised in the thesis and to set a common ground for a better understanding of further divagations raised in this thesis.

1.1. The concept of legal capacity

1.1.1. Historical background

The contribution of Roman law to the contemporary shape of European legal institutions within the sphere of private law, regardless of their common or civil law tradition, is undeniable. Legal capacity, as well as many other notions recognized in the majority of European legal systems, has its roots in the Roman law. Hence, it seems useful to focus for a moment on the origins of the concept which, together with the linked institutions of protection, has evolved significantly, resulting in an outcome one can find in contemporary civil codes across Europe.

Under the Roman law, legal capacity had been acquired at birth and expired with the moment of one’s death.8_{Furthermore, during pregnancy, the unborn child called nasciturus had} been perceived as a part of its mother and thus not a person in the light of law.9_{Yet, the legal} fiction that the child is already born could come into force if its inheritance rights needed to be protected,10_{following the Latin maxim “nasciturus pro iam nato habetur quotiens de commodis}

eius agitur”.11_{Both legal constructions, thus the acquisition and expiration of the legal capacity} of a person12_{together with the protection of the unborn child’s inheritance rights,}_{find its} application in many contemporary legal systems across Europe.13

Nonetheless, in Ancient Rome, the definition of the subject and bearer of rights had been of great complexity as the principle of the personality of the law prevailed.14_{Hence, legal} capacity was not commonly granted to every individual but it was determined by multiple legal conditions. The first key determinant was the three-patterned status of the individual, i.e., status

8_{Melville 1915, p. 84} 9_Ibidem.

10_{F. Longchamps de Berier 2013, p. 352}

11_Eng._{"The unborn is deemed to have been born to the extent that his own benefits are concerned". However, it}

should be mentioned that a child could gain legal personhood and make use of its rights only if born alive.

12_{Hesselink 2005, p. 493}

13_{The protection occurs in the inheritance law context in countries such as in Poland, Germany, Russia or France.} In other countries, as the Netherlands, Austria, Spain, Switzerland, Italy or Greece the concept is applicable in the whole system of private law (F. Longchamps de Berier 2013, p. 352).

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liberates (status of liberty),15_{status civitatis (status of citizenship) and status familiae (status in} family).16_{Only a person characterized by all three factors could enjoy full legal capacity. Such} person, called sui iuris, was thus typically a free adult man, citizen of Roman Empire and the head of a family. Hence, it appears rather evident that the full access to legal capacity under the first condition was very limited and strongly dependent on the political and cultural landscape at the time.17

Roman law acknowledged also other conditions that set limits to the legal capacity of a person. Above all, legal capacity depended on the person’s age; four stages of a life of an individual were distinguished and the scope of legal capacity was acquired gradually with the aging of a person.18_{This mechanism, though in a less complex form then in the ancient times,} is still to be found in many European civil codes.19_{Further, the access to legal capacity could} have been restrained by one's everyday-life behaviour, i.e. on the profession or personal life decisions20_{, religion or a wrongful act recognized under public law .}21_{Yet, in the course of time,} the latter factors have lost their significance and cannot thus serve as a basis for any restrictions of a legal nature today. Finally, legal capacity could have been limited in the case of persons with mental impairment (furiosi) and wasters (prodigi).22_{This restriction seems to be even more} important from the perspective of this thesis as those conditions may grant as a legal premise to limit legal capacity of an adult person in many contemporary legal systems.

In order to protect and control individuals with limited or no legal capacity, the Roman law recognized two main instruments: tutela and curatela. While tutela was a form of guardianship that was concerned with two classes of persons with no legal capacity, i.e. minors and women,23_{curatela was seen more as a form of help for persons whose cognitive (and legal)}

15_{As a consequence of the division based on liberty status, only fully and partly free persons could enjoy civil} rights while slaves were categorized as things in the light of law (res mancipi, res vocale – literally “a talking thing”).

16_{Melville 1915, p. 84.}

17_{The legal status of women may serve as an incisive example here.}

18_{Roman law classification consisted of four groups of people – infantes (children under 7) with no legal capacity,} impuberes with limited legal capacity, puberes minores (young adults under 25) with full legal capacity but also

empowered by protection against exploitation rights and puberes maiores (above 25) with full legal capacity and no extra rights.

19_{Examples of such codes may be the Polish and the Spanish civil code.}

20_{The so-called infamia immediata that derived from the act itself that was considered an infamy. Most commonly} referred to professionals such as actors, prostitutes, gladiators. Also the act of bigamy was seen as an infamy. 21_{The so-called infamia mediata that was not deriving from one’s act but was granted in a litigation process. It}

covered acts such as theft, robbery or defamation.

22_{Melville 1915, p. 85.}

23_{Roman law knew}_{several forms of tutela (“guardianship” or “tutelage”), i.e. tutela fiduciaria, (fiduciary}

guardianship), tutela impuberum (guardianship for minors who were emancipated from the legal control of a paterfamilias or head of household) and tutela mulierum (guardianship of emancipated women, whose fathers had died).

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capacity was limited, namely young adults between 14 and 17 and persons with mental impairments. Interestingly, the latter form is still world-widely recognized as a form of protection of persons with limited mental capacity.24

Hence, it may be noticed that the core of the notion and the instruments of protection of persons with mental impairments are deeply rooted in the ancient legal tradition. What has changed however, is the scope of the factors that determine the access to legal capacity which has broaden enormously in a result of political and societal changes. Due to a chain of important historical events, especially at the verge of 19th_{and 20}th_{century, the European mind-set had} changed significantly, influencing also the sphere of private law. And so, after ground-breaking events such as the French revolution or the suffragette movement, the rights of women started to be gradually recognized. Furthermore, in a long-lasting process of enfranchisement of peasants followed by The Revolutions of 184825_{, legal personality of the less wealthy part of} the European societies became recognisable in both the public and private sphere of law. Finally, the total abolition of slavery on a global scale26_{contributed to the process of broadening} the scope of legitimized subjects of civil law.

With the course of time, the notion and the scope of legal capacity have evolved significantly. In consequence, the group of people that has been empowered by the law to take fully legalized actions in the sphere of private and public law has grown enormously. Today it is seen as a common standard that every human being should be recognized as a person before the law and only in a limited number of situations, he or she may need assistance or substitution in enforcing those rights. Yet, the notion of legal capacity may face another reform since the United Nations has made a new attempt to redefine the concept by introducing Article 12 of CRPD.

1.1.2. Legal capacity in contemporary Europe

To begin with a general definition,27_{the concept of legal capacity may be understood as} the right of a person to make legally binding decisions or become a subject to particular responsibilities that, if not fulfilled, may be later legally executed. Consequently, individuals

24_{Sherman 1913, p. 130.}

25_{Were a series of political upheavals throughout Europe in 1848, known also as the Spring of Nations, People's} Spring, Springtime of the Peoples, or the Year of Revolution.

26_{First attempt to abolish slavery on a huge scale has been undertaken by the League of Nations in the1920s. A} result of those actions was the ratification of The Slavery Convention of 1926. As of the 21st_{century, slavery has} been abolished de iure world widely.

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whose legal capacity has not been recognized, do not have any power to act in those relationships.28_{Even though the given definition seems to describe the very nature of the notion} of legal capacity in a rather apt way, at this point two important issues should be put in the foreground.

Firstly, one may question the nature of a person making a decision or becoming a subject of obligations. Since two legal types of persons may be distinguished in the sphere of private law, i.e. natural and judicial persons, one may doubt the relevance of including the latter in the analysis. Indeed, this thesis will focus only on natural persons, setting judicial persons, companies and corporate law aside, as they are not subject to the Convention’s regulation. In consequence, the thesis will focus on the legal capacity of natural persons within the sphere of private law.

Secondly, some attention should be drawn to the matter of the division between different features of legal capacity. This judiciary term may in fact bear two notions: the capacity to have rights and the capacity to act upon those rights to which some authors refer as passive and active capacity.29_{From a practical perspective, such differentiation means that the first notion ensures} the recognition of legal personhood understood as the attribute of being a subject of rights and obligations, while the latter enables the person to make independent, legally binding decisions, such as entering into contracts, making gifts or writing a valid will.30

Hence, it needs to be highlighted that many legal systems perceive capacity to have rights and capacity to act as two separate concepts, appointed separately and described by two different terms.31_{Consequently, in many countries legal capacity to act may be restricted under} certain circumstances, while the passive legal capacity remains unchanged throughout a person’s life. This means that a person may be recognized as a subject of rights but at the same time the law requires that the exercise of those rights has to be assigned to somebody else – often a legal guardian. The reason for such restriction often derives from the state’s paternalistic approach to the protection of its citizens which will be discussed further on.

1.1.3. Legal capacity and Article 12 of the Convention

The Convention on the Rights of Persons with Disabilities is an international treaty of the United Nations that is intended to improve the current situation of persons with disabilities.

28_{Arstein-Kerslake & Flynn 2016, p. 471-490,} 29_{Hesselink 2005, p. 493}

30_Ibidem. 31_Ibidem.

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The text of the Convention was adopted on 13 December 2006 and came into force on 3 May 2008 (after being signed by 20 parties). As of October 2018, it has been signed by 177 parties. As stressed in the Preamble of the Convention, “it takes to a new height the movement from viewing persons with disabilities as “objects” of charity, medical treatment and social protection towards viewing persons with disabilities as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society”.32_{Thus, the chief aim of the Convention’s} originator, the UN, is to change the attitude towards persons with impairments and, consequently, strengthen their position within the society by providing them with legal instruments for their rights’ enforcement. In other words, the Convention is thought to serve as a legal instrument for social development of persons with disabilities as it ensures that all individuals should effectively enjoy all fundamental rights and freedoms despite of any physical or mental impairments.

One of such fundamental rights has been expressed in Article 12 of CRPD. The provision consists of five paragraphs, all circulating around the principle of equal recognition before the law. And so, paragraph one outlines the right of persons with disabilities to be recognized as persons before the law while paragraph two grants the right to legal capacity for persons with disabilities on an equal basis with other individuals. Further, paragraph three imposes an obligation on the treaty states to provide support that would enable persons with disabilities to enjoy their legal capacity. The obligation is followed by paragraph four that sets a requirement for the treaty states to create safeguards ensuring that persons with disabilities can exercise their right to legal capacity which, according to UN Committee on the Rights of Persons with Disabilities, 33_{may be only achieved by converting all regimes of substituted} decision-making into supportive decision-making ones. Finally, paragraph five seeks to grant the access to property and equal rights regarding financial affairs for persons with disabilities, as those are the traditional areas where persons with disabilities are treated less favourably by the law.

Through introduction of the right of equal recognition before the law, supported by the following paragraphs that grant its effective enforcement, Article 12 significantly reshapes the concept of legal capacity by broadening its current scope. After many disputes at the doctrinal level, it turned out that the UN Committee sees legal capacity as a uniform notion,

32_{The United Nations, Preamble to the Convention.}

33_{United Nations Committee on the Rights of Persons with Disabilities, General Comment No. 1 to Article 12 of}

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encompassing both passive and active legal capacity.34_{In other words, in the light of the} Convention, two sides of legal capacity are seen as one complex attribute, i.e. of being a subject of rights and obligations and an actor in law. In consequence, Article 12 grants legal capacity in its full scope to every human being, despite of any physical or mental limitations.

Concomitantly, the provision seems to provide, at least prima facie, a solid basis for legal protection of persons with impairments.35_{As stressed by the Council of Europe, Article} 12 reaches far beyond the process of decision-making since it touches upon the matter of humanity.36_{Hence, the purpose of the discussed provision is not to create a new special right} that may be enjoyed by persons with disabilities but to include such persons in the human rights discourse and, even more importantly, tailor the fundamental rights in such a way that they fit their specific needs.37_{Yet, this new concept became a challenge for many treaty states whose} legal systems perceive the notion of legal capacity as two separate attributes and, in consequence, offer legal instruments of protection that may be found illegitimate in the light of the Convention.

1.2. Legal capacity vs. mental capacity

As has been already mentioned, the main focus of this thesis is put on the legal capacity of persons with disabilities in a form of mental impairments. The reason for such circumscription stems from the presumption that mental impairments appear to become a problematic matter when it comes to the implementation of Article 12 of the Convention. On the one hand, it seems undeniable that the well-being of an individual may be at risk in a situation of entering a contract (or performing any other legally binding action in the sphere of private law), especially if the individual is incapable of understanding the consequences of the performed act due to some limitations to his or her mental capacity. Therefore, in order to help such a person, the state should provide him or her with some instruments of protection. On the other hand, the question that needs to be raised is: what type of protection is the most adequate to protect those individuals? In order to establish that, one should first ask how the mental capacity and its deviations should be understood and, furthermore, whether and how those deviations may influence one’s legal capacity to act.

34_{The General Comment No. 1.} 35_{Stainton & Clare 2012, p.1011} 36_{Council of Europe 2012, p. 11} 37_{Ibidem, p. 18}

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1.2.1. Mental capacity and its deviations

To begin with, it is necessary to note that no explicit definition of disability has been incorporated in the UN Convention on the Rights of Persons with Disabilities.38_{Instead, an} inclusive definition is given in its Article 1: delineating the scope of the treaty, the provision refers to persons with a long-term physical, mental, intellectual or sensory impairments. Hence, two features may be from this implicit definition of disability. The first one is the durability of the impairment. Further, two main types of mental impairment may be distinguished, i.e. intellectual disability and mental disorder.

The intellectual disability (ID),39_{also known as general learning disability and mental} retardation (MR), is a generalized neurodevelopmental disorder characterized by significantly impaired intellectual and adaptive functioning.40_{In science, this condition is defined by an IQ} result below 70 that stays in connection with deficits in two or more adaptive behaviors that affect every-day living of a person.41_{This type of impairment is presumably easier to diagnose} than a mental disorder, as it is a disability of a life-long character and, furthermore, the conditions are often visible and easier to detect, usually on the basis of a psychological test.

When searching for a definition of mental disorder, the starting point should be to explana the notion of mental health as a benchmark that allows to assess which conditions should be perceived as deviations from a ‘healthy’ mind. For now, it seems that the definition has been most aptly captured by the World Health Organization (WHO).42_{According to WHO,} mental health should be understood as “a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community”.43_{In other words, the} term consists of different dimensions that can be shortly described as being successful in one’s private life as well as in the social sphere.44

Mental disorder is thus a statistically counted deviation from a numerical norm (mental health), established by the scientists45_{, which deviation has to be of an obviously negative} character, meaning that it prevents an individual from leading an independent life and

38_{The CRPD.}

39_{Wilmshurst 2012, p. 168} 40_Ibidem.

41_Ibidem.

42_{Though the definition is sometimes being criticized for its vague approach.}

43_{WHO 1992. The ICD-10 classification of mental and behavioral disorders: Clinical descriptions and diagnostic} guidelines.

44_{Butcher, Hooley & Mineka 2015, p. 23-24} 45_Ibidem.

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participating in social relationships.46_{Yet, the problem with clear distinction between mental} health and its negative deviations tends to arise already at this point. While it seems possible to assess with a fair amount of certainty whether an individual is intellectually disabled, it is rather cumbersome to aptly define mental disorder. The lack of precise rules establishing the border between ‘normality’ and ‘abnormality’ seems to serve as a perfect argument that the challenge with capturing the (lack of) mental capacity is real.

As a matter of compromise, three detailed classifications47_{of mental disorders have} entered into the common use among the medical professionals.48_{All three classifications enlist} the currently known mental disorders; the list has been recently updated and adjusted to contemporary sociological and psychological standards. One of the biggest achievements is perhaps the ultimate elimination of the term ‘mental illness’ from the psychiatric nomenclature in the name of the 21st_{-century’s political correctness and the movement against stigmatization} and exclusion of people with mental impairments. Nevertheless, even the current classifications cannot be taken as ultimate and fully comprehensive ones as the notion of (lack) of mental capacity remains fluid.

Hence, as a final remark of this section, it should be stressed that there is no ultimate definition of mental capacity: the norms change dynamically together with the development of the society and science. The legislator should bear this in mind when defining mental capacity and groups of people are unable to function within a society if this is about to trigger the denial of the right to undertake legally binding actions. Yet, in Europe the notion of mental capacity is still commonly used to assess and deny legal capacity.

1.2.2. Mental capacity as a limitation to legal capacity

In the most traditional form, the limitation of legal capacity is based on the mental health status of a person, thus, whether he or she has been diagnosed with a mental disorder or ID. If this is the case, the person may be incapacitated upon a judicial decision for the very reason of being diagnosed with a mental impairment of a specific kind.49_{Furthermore, limitations to legal} capacity may be sometimes based on the outcome approach.50_{Here, the attribution of}

46_Ibidem.

47_{The mentioned classifications are: ICD–10 (issued by WHO, and updated in 2015 as ICD-11), DSM-5 (released} by American Psychiatric Association in May 2013), and the American Association on Intellectual and Developmental Disabilities - AAIDD (currently in its 11th edition).

48_{Tasse 2013, p. 114}

49_{Devi, Bickenbach & Stucki 2011, p. 252} 50_{Devi, Bickenbach & Stucki 2011, p. 252}

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incompetence is made on the basis of a decision made by the person with a disability, for instance about the termination of a voluntary psychiatric treatment when the continuation of treatment seems to be necessary for the person to cure. Another, less frequent approach to the assessment of one’s legal capacity is the functional approach. An example of such function-oriented legislation may be the establishment of a test of cognitive capacity as the threshold for carrying out certain legally binding decisions, such as decisions about involving the sale or purchase of assets, or about with whom to marry.51

It may be debated which of the three ways of one’s legal capacity assessment (if any) is the most suitable in order to help the mentally impaired person in functioning in the society and protect his or her interests on a daily basis. While UN Committee rejected all three approaches as discriminatory,52_{in psychiatric science an argument has been raised that such assessment} followed by setting legal boundaries to independent performance is indeed necessary to ensure the protection of the individual struggling with mental impairment.53_{Hence, while the first two} approaches lead to an intense interference in the individual’s freedom, it may be argued that the latter brings a more flexible solution as it allows to spot out the sensitive features of an impaired person’s limitations and distinguish between types of decisions and different circumstances in which the decision is about to be made.

In any case, the consequences arising from a judicial decision on setting limits to one’s legal capacity lead to a conflict of the values at stake. The bone of contention is the question whether a person should be denied the right to make decisions on his or her own because his or her limitations of the cognitive perception.54_{On the one hand, the denial of legal capacity may} be seen as the fulfilment of the state’s obligation to provide the individuals in a weaker position (due to their limited mental capacity) with adequate legal protection. This expressly reflects a paternalistic approach, contemporarily associated with the democratic welfare state, linked to philosophies such as utilitarianism or communitarism. Here, the so-called best interest of the citizens, seen not only as individual persons but also as members of the society, is of the state’s highest concern. Concomitantly, their will or preferences take a secondary priority if they do not meet the state’s interpretation of best interest and so the core values protected by the state. Therefore, in certain situations, when the lack full cognitive capacity of some individuals may affect their decision-making process, the state decides to step in in order to protect them and

51_{Devi, Bickenbach & Stucki 2011, p. 253}

52_{The General Comment No.1.}

53_{Dawson 2015, p. 70-79}

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their best interest.

On the other hand, the establishment of incapacitation followed by the introduction of substitute decision-making instrument that limits the independence of a person in legal relationships is often criticized for its too far-fetching interference in an individual’s life. The main argument raised against incapacitation and legal guardianship is that they lead to a so-called civil death of impaired persons which de facto deprives them of their rights instead of protecting their interests. Here, a more individualistic and libertarian approach steps in, focusing primarily on the person’s own preferences and will as the most important values to be protected by the state. Through the principle of human dignity, a right to autonomy and self-determination is pushed to the foreground.

Given the above, it seems that Article 12 of the CRPD tends to support the latter idea as it accepts different ways in which people make decisions and different levels of cognitive ability and urges the states to change the environment instead of trying to ‘fix’ the individuals’ ability to decide by themselves by substituting them in this process.55_{The provision is thus seen as a} trigger for a change in the sphere of private law relationships.56

1.4. Decision-making models

When a person is diagnosed with limited mental capacity, either deriving from intellectual disability or mental disorder, the modern welfare state’s obligation is to intervene and provide the person with (legal) instruments that would protect his or her rights as a member of the society. The final part of this chapter has been thus dedicated to a brief introduction of the legal solutions developed to meet the needs of persons with mental impairments. As mentioned before, two main instruments play a key role in this process – the substitute and the supportive decision-making model.

1.4.1. The traditional approach: the substitute decision-making model

The first model, present in the European jurisdictions since the Roman times, is the substitute decision-making model. It enables a proxy (guardian) to make decisions on behalf of another person, who is claimed, usually on the basis of a previous court decision supported by a medical record, to be incapable of making decisions on his or her own. In consequence, the incapable person is denied the right to make legally binding decisions independently.

55_{Council of Europe 2012, p. 21} 56_{Arstein-Kerslake & Flynn 2016.}

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The UN Committee for Rights of Persons with Disabilities has defined substituted decision-making using the following three characteristics: (i) capacity is removed from a person, even if this is in respect of a single decision; (ii) a substitute decision-maker can be appointed by someone other than the person concerned, and this can be done against his or her will; and (iii) any decision made by a substitute decision-maker is based on what is believed to be in the objective ‘best interests’ of the person concerned, as opposed to being based on the person’s own will and preferences.57 58_{In many contemporary European legal systems, the} described substitute decision-making model is still in force and serves as the main legal instrument of protection of persons with mental impairments.

The substitute decision-making model in the form of legal guardianship is established upon a judicial decision and may appear in two basic forms: the so-called partial and full (plenary) guardianship.59_{The two models of guardianship differ in the range of decisions that} are made by the proxy on behalf of a person and are determined by the person’s level of impairment. This construction enables the person with mental impairments to remain a passive beneficent of the rights granted by the law, in both the public and the private sphere. Furthermore, one of the core tasks of the legal guardian is to take over the decision-making processes over the incapacitated adult’s financial means. It is sometimes depicted as a last-resort solution to establish the protection of the individuals whose limited cognitive capacity makes it impossible for them to foresee the consequences of their actions, or, in a worst-case scenario, make any decisions at all. Therefore, it is claimed that they need a substitute in order to fully (or reasonably?) enjoy the vast range of possibilities that the legal turnover and everyday life offers to them.

Nevertheless, there are several arguments raised against the institution of legal guardianship, most of them being based on the illegitimate refusal to acknowledge the person’s legal capacity in its active form. Since the decisions are made de facto by another subject and, sometimes, not necessarily in compliance with the incapacitated person’s wishes or expectations, they may hardly be seen as the fulfilment of one’s will or even an act in the persons best interest. It is thus often argued that the substitute decision-making model goes too far as it gravely interferes in the individual’s liberty and must be seen as disproportional. In the

57_{The UN Committee, The General Comment No. 1.}

58_{However, it needs to be mentioned that this definition does not comply with everyone’s common language use}

of the term ‘substituted decision-making’. It does not include every situation in which one person makes a decision on behalf of another person, such as grating a power of attorney or appointing other representatives.

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end, some suggest there seems to be little sense in having a status of a holder of rights if one is not entitled to make use of them independently.60

Furthermore, it is often said that the refusal of active participation in everyday-life relationships (often resulting in legal consequences) may eventually lead to social stigmatization or even social exclusion, not only of an individual, but also of whole groups of citizens, i.e. persons with mental impairments.61_{It is argued that as the impaired individuals} become inactive members of the society, they lose their chance to recover and to develop as persons with the help of the society.62_{Another frequently raised concern is how to assess} whether a person is (still) incompetent to act individually if he or she is not allowed to decide independently in the first place.63_{Finally, an empirical objection raised against legal} guardianship, somehow linked to the previously mentioned argument, is that the incapacitation often turns in a life-long solution as the courts only seldom revise it or decide to withdraw it.64

One of the strong advocates of full legal capacity of persons with disabilities is the UN Committee which sees the prominent solution to the inequality issue in the worldwide introduction of the supported decision-making model. Also the European Court of the Human Rights (further: ECtHR) seems to be in favour of implementation of the innovative model, though not explicitly but through sharing the concerns about the restriction to one’s general freedom and a ban to participation in social and public life through the establishment of legal guardianship. In the Court’s landmark case, Kiss v. Hungary65_{, the ECtHR referred to the}

European Convention of Human Rights66_{and stated that no national institution (i.e. legal} guardianship) should lead to a social exclusion. Remembering the dark page of the history of stigmatization and marginalization of persons with mental disorders, the Court emphasized the detrimental character of such stereotypes and suggested that legislative stereotyping makes it impossible that individuals are evaluated according to their capacities and needs. Similarly, in Shtukaturov v. Russia,67_{the Court stated that the existence of a mental disorder does not per se} implicate the necessity to grant incapacitation and legal guardianship and therefore should be never seen by the state as a first-resort solution to the problem.

60_{The Council of Europe (2012), p. 12} 61_{The Council of Europe (2012), p. 13} 62_Ibidem.

63_Ibidem. 64_Ibidem.

65_{ECtHR, Alajos Kiss v Hungary.}

66_{European Convention on Human Rights (ECHR).} 67_{ECtHR, Shtukaturov v. Russia.}

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Going even further, in the judgement X and Y v. Croatia68_{, the ECtHR stressed that the}

procedure of incapacitation should be used very rarely and with a great care as it results in far-fetching and long-term repercussions for the incapacitated person.69_{Finally, in Thlimmenos v.} Greece, the Court elaborated on the principle of non-discrimination that is also one of the main foundations of the CRPD and its Article 12.70_{The ECtHR held that the state fails to guard} persons with impairments from discrimination not only when it allows them to be treated differently in analogous situations but also when it fails to treat them specially in a significantly different situation. This also seemed to be the reasoning followed by the UN bodies when drafting the provision on equal recognition before the law.

1.4.2. A move forward: the supported decision-making model

An alternative to the legal guardianship that is meant to include and recognise persons with disabilities as members of society is the supported decision-making model. The change has been called a ‘paradigm shift’ as in overrules the previous disability policy and is oriented towards a shift in viewing persons with disabilities from objects to subjects.71_{The concept of} ‘paradigm shift’ has been introduced in Article 12 paragraph 3 and is based on the leading principle of the provision which is the right to equal recognition before the law. It states that all people, regardless of their impairments, should be treated by the law as autonomous beings who develop and maintain legal capacity as they engage in the process of their own decision-making even if at some level support is needed.72

One of the arguments underlying the paradigm shift and the change of the decision-making model is that legal capacity and ability to make decisions are not something that can be inherited but needs to be learned and may be learned by all individuals, despite of any impairments they may suffer from. Therefore, it is argued that the term “disability” should be understood differently, i.e. that it is the society’s failure to create an inclusive and supportive environment rather than mental or intellectual conditions of a person.73_{It is believed that with} the support of the society every individual is capable of expressing his or her needs and,

68_{ECtHR, X and Y v. Croatia.}

69_{Furthermore, in several rulings the ECtHR stressed the importance of high standards of the procedure of} establishing incapacitation, as for instance in Stanev v. Bulgaria.

70_{ECtHR, Thlimmenos v. Greece.}

71_{See: Dinerstein 2012, p. 8-12, Pearl 2013, p. 20-28.} 72_{Dhanda 2007, p. 429–62.}

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ultimately, lead a life he or she wants to lead.74_{Hence, the aim of the world-wide introduction} of supported decision-making model is to bring measures that would help persons with disabilities coexist in a society at an equal level with other individuals.

Article 12 of the CRDP compels an introduction of some measures of support at a national level. Firstly, policies and law reform should assist people who do not require an advanced support to exercise their legal capacity but rather need a communicative assistance,75 such as Braille, tactile communication, multimedia and alternative models of communication.76 Secondly, for individuals with impairments of a more profound character, an elaborated help is needed. Some authors advocate for so-called ‘support networks’ that consist of small group of individuals who, having a personal bound with the disabled person,77_{are about to assist him or} her in making decisions, or having the already-made decisions respected.78_{Further, the support} may be granted by the state, as in the case of Swedish regulation of Personal ombudsmen. Here, the assistance and help is offered by a trained individual that provides the impaired person with all necessary information, explanation and advice.79_{Crucially, the appointment of a trained} individual does not affect the civil rights of the disabled person as he or she is only allowed to only act with the consent of the person.80

The supported-decision making model introduced by the Convention, already implemented by some state-parties,81_{undoubtedly brings an innovative solution to the problem} of the legal position of persons with mental impairments, who have suffered for centuries from stigmatization and exclusion from the society because of the features they have no force upon. Yet, at the same time, it is important to realize that supported decision-making is not always easily applicable, as it may seem at the first glance. First, the states may face the problem of lack of sufficient human resources to provide the persons with disabilities with a complex, tailored-made support system.82_{Another issue may be encountered in the so-called hard cases.} One may think for instance of persons with an advanced level of mental impairment in result

74_{In literature, an empirical example to support this stance is given; one of a Canadian citizen whose results of a} psychological tests suggested that he was not capable to make any ‘adult’ decision but who, with the help of support community, eventually managed to express his needs in a trail and his will has been respected by the court (Pearl 2013, p. 21-22).

75_{Pearl 2013, p. 23}

76_{Introduction of those measures should be followed by a training for professionals, such as doctors or public} officials.

77_{Bach 2007, p. 11} 78_Ibidem.

79_{Council of Europe 2012, p. 17.} 80_{Pearl 2013, p. 23}

81_{Countries such as Sweden, Canada or the United States.} 82_{Arstein-Kerslake & Flynn 2016, p. 477}

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of which they are not able to (effectively) communicate with the surrounding world. A different example may be a severe mental disorder that may trigger a person to make a decision that will have detrimental consequences for him or herself.83_{Therefore, the questions that remain are:} does Article 12 depict a utopic or a realistic vision? Is it possible to fully replace the substitute decision-making model with the supported decision-making one? And finally: is the full replacement of the substitute model the best measure to achieve equal recognition before the law?

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Chapter Two – Poland

Poland (officially the Republic of Poland), like most of the continental European countries, follows the civil law tradition, which means that the main source of law is to be found in the statutory law while the judiciary together with the legal doctrine play an important but secondary role. Currently, the role of the Polish legislator is performed by the Polish Parliament,84_{yet, for a statue to enter into force, it has to be approved and signed by the} President. The supreme law in Poland is the Constitution of Poland of 199785_{that sets rules} essential for the state’s existence, such as the governance system, the fundamental rights and obligations of the citizens and the hierarchy of legal norms.

Signed in 2007 and ratified in 2012, the Convention on the Rights of Persons with Disabilities has become an integral part of the Polish legal system. From the constitutional perspective, the Convention shall be only subordinate to the Polish Constitution, which means that all national and local legal acts are of a lower rank and shall be compatible with the Convention’s provisions.86_{Yet, at the moment of writing, the implementation of the CRPD’s} provisions is still in a fledgling stage, especially with regard to the principle of equal recognition before the law with all its far-fetching consequences. This non-compliance with the Convention’s provisions has not only caught the attention of several Polish legal scholars, the Polish Ombudsman and domestic NGO organizations,87_{but has also become a subject of} interest for the UN bodies that expressed their concern about the level of protection of persons with disabilities provided by the Polish national authorities.88

The aim of this Chapter is to analyse the legal situation in Poland in the light of the implementation of the principles deriving from Article 12 of the CRPD. Yet, before moving to the core of the issue, a general overview of the key notions from the perspective of the Polish legislator and the legal doctrine will be presented. Having set the background for further divagations, the focus will be put on the current legal situation of persons with disabilities and

84The Polish Parliament consists of the Senat (upper house) and the Sejm (lower house).

85_{Constitution of the Republic of Poland (pol. Konstytucja Rzeczypospolitej Polskiej), was adopted by the National} Assembly of Poland on 2 April 1997, approved by a national referendum on 25 May 1997, and came into effect on 17 October 1997. It replaced the temporary amendments put into place in 1992 designed to reverse the effects of the communist dictatorship.

86_{According to Chapter 3 of the Polish Constitution which establishes the hierarchy of legal acts in Poland.} 87_{Helsinki Foundation for Human Rights 2018, p. 6-7.}

88_{In 2018 the UN Committee address the question of the effects of implementation of the Convention in Poland.} It has been announced on the official website of the Polish Ombudsman.

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the on-going debate on the future of the substitute decision-making model in the process of Article 12 implementation into the Polish legal system.

2.1. Legal capacity and legal guardianship in Poland

2.1.1. Legal capacity

Under the Polish law, the notion of legal capacity and its legal limits are regulated by the Polish Civil Code89_{(further: PCC) that came into force in 1965 under the ruling of the Polish} People’s Republic90_{government. Although the PCC has undergone many changes after the} overthrow of the communist regime, it is still perceived to be one of the most prominent Polish legal acts with a great importance for a vast range of private law relationships. From a systemic perspective, it is seen as the axis for the whole private law system in Poland which means that other regulations whose subject refers to legal relationships within the private sphere of law, are guided by the PCC’s provisions.

In Poland, the notion of legal capacity is of a twofold character, i.e. the legislator distinguishes between ‘zdolność prawna’ (Article 8 of the PCC91_{) and ‘zdolność do czynności} prawnych’ (Article 11 of the PCC92_{). Those terms can be respectively translated as the legal} capacity to be recognized as a person in the light the law and the legal capacity to act or, in other words, passive and active legal capacity. Thus, under the PCC, the passive legal capacity entails the recognition of legal personhood. It is acquired by all persons with the very moment of their birth and expires with the moment of their death.93_{A practical dimension of this} attribute is that every person is recognized as a subject of rights and obligations arising from the contractual relationships or from the law itself, as in the case of tortious liability. Concomitantly, those rights and obligations need to be acknowledged and effectively enforced, yet, zdolność prawna itself does not go further than the sole recognition of rights and obligations. It may thus happen that in certain circumstances one’s legal capacity will be limited only to this passive dimension; as in the case of the establishment of incapacitation by the court. The active legal capacity goes further than the recognition of the individual’s rights as it constitutes the possibility to make declarations of will that are binding in light of law. This

89_{Polish Civil Code of 1964 (pol. ustawa z dnia 23 kwietnia 1964 r. - Kodeks cywilny).} 90_{Pol. Polska Rzeczpospolita Ludowa (PRL).}

91_{Article 8 of the PCC.} 92_{Article 11 of the PCC.}

93_{The Polish legislator does also follow the ancient Roman legislation and introduces the recognition of inheritance} rights of the unborn child – nasciturus. Similarly, a legal fiction is used to protect the financial interests of the unborn.

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means that the individuals have the power to create, change or terminate legal relationships sensu largo. Under the PCC, similarly to the Roman law, the scope of one’s legal capacity expands gradually with one’s aging.

The first group of rights to act is granted to the minors beyond the age of 13. Those individuals may enter the so-called ‘minor everyday-life contracts’94_{without a former consent} of their guardian but, consequently, the performance of any other legal act will be declared null and void ex lege. Further, individuals above 13 but below 18 years old are also entitled to enter the minor every-day contracts and, moreover, they may make a disposal of their earnings and material goods which they received from their legal curator (most commonly the parents).95_For legal actions other than the above-mentioned ones, the former consent of the curator is required under the pain of nullity.96_{Finally, persons of a legal age, thus of 18 years old and more, enjoy} full legal capacity to act, without any restrictions.

The scope of active legal capacity may be, however, limited in a result of a judicial decision of incapacitation followed by the establishment of legal substitution. Depending on the type of incapacitation (plenary or partial), the person may be denied the right to make any legally binding decisions or be entitled to make only a limited range of those, as if he or she was of the age between 13 and 18.97_{Hence, it should be noted that under the Polish law only} the full legal capacity to act enables an individual to freely enter legal relationships and participate in the legal turnover.

This twofold concept of legal capacity has resulted in some interpretational problems. In its reservations to the act of ratification of the Convention, the Polish government stated that the notion of legal capacity used in the Article 12 shall be understood as limited only to the first dimension, thus, to the right to be recognized as a person in the light of law. 98_Such interpretation was supposed to guarantee that the institution of legal guardianship would remain unaffected by the implementation of the Convention. Yet, this act of the Polish government has been severely criticized for going up against the very purpose of the Convention.99_{Additionally,} the UN Committee has made it clear that the definition of legal capacity for the purpose of the Convention should cover both passive and active capacity100_{, thus the Polish interpretation} could not be justified anymore by the lack of transparency in meaning. Finally, the

94_{Unless the contract is of a grossly harmful character – Article 14 of the PCC.} 95_{Article 20 and 21 of the PCC.}

96_{Article 17 and 18 of the PCC.} 97_{Article 15 of the PCC.}

98_{M. Domański 2014, p. 30, A. Błaszczak 2014, p. 34, Rybski 2014, p. 102} 99_Ibidem.

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interpretational reservation of the Polish government lacked a solid legal ground as its validity seemed to be questionable from the public international law perspective and also because of the fact that at the same time Poland decided to ratify the full text of the Convention.101

2.1.2. Incapacitation and legal guardianship

In Poland, the institution of incapacitation (pol. ubezwłasnowolnienie) had been first introduced in the 19th_{century, during the period of foreign partitions. At that time, no uniformity} of the civil law had been known since different parts of the former Kingdom of Poland had been governed by different legal systems, based on Russian, German and Austrian law. Only after the First World War, a form of legal guardianship for persons with mental incapacity had been introduced by the independent Polish legislator.102_{In the early 1960s, the concept of} incapacitation has been reshaped and entered into force together with the promulgation of the Polish Civil Code. Since then, the institution of incapacitation remained unchanged, however, what seems interesting, it does not resemble the construction from the pre-war legislation but rather derives from the Austrian construction of legal guardianship.103

The PPC introduces two types of incapacitation: in a plenary (pol. ubezwłasnowolnienie całkowite - Article 13 of the PCC) and partial (pol. ubezwłasnowolnienie częściowe - Article 16 of the PCC) form. Both types of incapacitation trigger the necessity to establish a legal substitutor empowered to act on the incapacitated person’s behalf (a guardian in the case of a plenary incapacitation or a curator for the partial incapacitation). Crucially, the wording of Article 16 suggests that the establishment of legal guardianship takes precedence over the establishment of curatorship, i.e. the curatorship may be granted by the court only when there is no need for full substitution.

According to the provisions on incapacitation, in order to establish legal substitution for a person, two premises regarding the age of the person and his or her mental condition need to be fulfilled. And so, the person has to be of a certain age (thirteen years old in case of guardianship, eighteen in case of curatorship) and suffer from mental illness, ID or other mental disorder, such as alcohol or drug abuse. Hence, while both provisions are convergent when it comes to the general premises upon which the court may grant incapacitation (the judgement is based on the lack of cognitive capacity), the core difference lies in the intensity of the

101_{M. Domański 2014, p. 10}

102_{The only purpose for imposing such restriction on an individual’s freedom to act was – as stated by the Supreme} Court of Poland – their best interest.

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impairment and its influence upon a person’s behaviour. And so, in a case the mental condition makes the person incapable of making independently any (reasonable) decisions, the person will be fully incapacitated upon a court’s decision. In consequence, the person loses her full legal capacity to act and a guardian (appointed in a separate judicial decision) is entitled to make all legally binding decisions on the person’s behalf.

By contrast, in order to grant a partial incapacitation followed by the establishment of curatorship, the court is obliged to investigate whether the person’s mental capacity allows to assume that he or she is able to independently undertake (reasonable) actions but at the same time needs help in making some of the legally binding decisions. If the outcome of the investigation is affirmative, the legal curatorship is established, and the person receives help in undertaking a vast range of legal actions in the form of a legal representative. Parallelly, the person’s legal capacity to act becomes limited, as in a case of minor between 13 and 18, with all the repercussions described in the former section.

Two main issues may be addressed in the light of the present wording of the incapacitation provisions. Firstly, the nomenclature used to describe the premises for incapacitation consists of an outdated terminology. For instance, as already stressed in the previous chapter, in the psychiatric and sociological language the term ‘mental disorder’ has replaced the term ‘mental illness’ in order to avoid stigmatization of persons suffering from mental impairments. Furthermore, the wording used for the description of the intellectual disability is marked by a pejorative overtone and again: may trigger stigmatization and exclusion of persons with disabilities.104_{Hence, it is often argued}105_{that the current} nomenclature should be replaced by a more neutral and contemporary one. Furthermore, it seems that the discussed provisions do not exhaustively enlist the health conditions under which a person is perceived as unable to make independent decisions and thus meets the requirements to be incapacitated by a judicial decision. For instance, the PCC does not mention lack of cognitive capacity resulting from the natural process of aging or from illnesses such as dementia or arteriosclerosis that seem to be of great importance in the nowadays’ aging European society.106

Secondly, it may argued that the phrase ‘unable to act on one’s own behalf’ may be sometimes difficult to capture for the court because of its vagueness and consequently,107_it

104_{Zima-Pajraszewska 2014, p. 4} 105_Ibidem.

106_{B. Janiszewska 2015, p. 1-5} 107_{Zima-Pajraszewska 2014, p. 4-5}

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does undermine its own role as one of the premises in such sensitive matter as incapacitation, an institution deeply interfering in an individual’s freedom. Therefore, some attempts to further interpretation have been made and, as a result, some of the authors request that the court should look deeply into the behaviour of a person, his or her emotional state and everyday activities.108 Also, the Supreme Court of Poland has elaborated on that matter and clarified that the state in which a person needs a legal guardian is one in which she does not have a conscious contact with the surrounding world which has its consequences in the decisions she makes (or is not able to make).109

Finally, both provisions on incapacitation remain silent about the person’s best interest in the process of the establishment of incapacitation. This legal loophole has been filled by the Supreme Court of Poland that granted the best interest of the person in trial as an additional premise that needs to be taken into account by the court when deciding upon granting incapacitation. In consequence, it is commonly accepted that the judicial decision has to be dictated solely by the person’s well-being, and thus not by the interest of the third parties (such as family members). Similarly, the Polish Constitutional Tribunal in two path-breaking judgements,110_{stressed the importance of the disabled person’s best interest and advocated for} a more humanistic understanding of the concept of incapacitation and legal guardianship with a suggestion to rethink the legal construction in the nearest future. Those judicial interpretations seem to be a promising step towards the humanization of the institution of incapacitation in the Polish legal system that does not expressly state such requirement. However, as argued in the literature, for a better protection of persons with disabilities, the additional premise granted by the Courts should find its reflection in the Polish Civil Code’s provisions on incapacitation.111

2.2. Legal situation of persons with mental impairments

2.2.1. Legal consequences of incapacitation

Before moving to the statistics and the dispute on the legal situation of persons with impairments in Poland, in order to understand the gravity of the problem, the consequences that follow a judicial decision on incapacitation and establishment of legal guardianship will be briefly discussed.

108_{Zima-Pajraszewska 2014, p.5}

109_{Judgement of the Supreme Court of Poland from 17.5.2013, I CSK 122/13.}

110_{Judgement of the Constitutional Tribunal of Poland, No. P 11/98 from 12.01.1999, and No. Kp 1/05 from} 22.09.2005.