In this article, SDMNY Project Director Kristin Booth Glen discusses guardianship laws as of October 2012, focusing on an examination of mental capacity and legal capacity in regards to an individual’s decision-making process and the legal oversight of incapacitated people. International human rights laws and a disability rights movement are addressed in relation to the legal capacity of an individual. Thomas S. Kuhn’s book “The Structure of Scientific Revolutions,” which mentions the phrase paradigm shift, is also assessed, along with the United Nations Convention on the Rights of Persons with Disabilities.
The article considers how the human right of legal capacity, specifically for persons with disabilities, can be incorporated into legal discourse and practice in the United States. Drawing on efforts in Canada, Europe, Africa, and Australia it looks at the ways in which legal capacity and the corresponding practice of supported decision-making (SDM) have been introduced and promoted through legislative reform and pilot projects, concluding with some observations about what it will take to bring this critical human right “home.”