As part of the 57th Session of the Human Rights Council, AGE German member, BAGSO, organised a side event to discuss challenges related to the legal capacity, autonomy and informed consent in older age, the gaps in the existing framework and possible practical measures to address the issue.
Every human being has the right to make decisions and form legal relations. However, especially in the context of disability and older age, the rights to exercise legal capacity, live autonomously and give informed consent are oftentimes deprived. To ensure the effective enjoyment of the right to legal capacity, a number of measures are necessary, including the strengthening of legal frameworks and development of supported decision-making alternatives.
Our colleague, Nena Georgantzi, AGE Human Rights Manager, was among the panelists of the event, together with Dr Claudia Mahler, United Nations Independent Expert on the enjoyment of all human rights by older persons and Harumi Fuentes Furuya, Office of the High Commissioner for Human Rights (OHCHR).
How do we observe limitations of legal capacity in old age in practice?
For Dr Mahler, ageism is one of the root causes why UN member states and other actors are easily giving away the legal capacity of older people, and it “needs to be tackled quite clearly”.
As a recent report of the Independent Expert has shown, .The prevalent narrative of decline when we talk about older people, who are seen as weak and vulnerable, and the intersection of ageism with other types of prejudice create particular risks for the denial of legal capacity for example for older women.
Other informal ways in which the exercise of legal capacity can be restricted, according to Dr Mahler is the lack of accessibility of key information that can undermine the ability to decide.
Harumi Fuentes Furuya from the Office of the High Commissioner for Human Rights (OHCHR) emphasized that older people with disability are more at risk of limitations on their rights to autonomy. For her, the deprivation of legal capacity is observed in relation to guardianship laws, but also to decisions linked to various aspects of their lives, such as where they want to live, what they want to eat or to wear, the management of property, inheritance, etc.
For AGE Human Rights Manager, the right to legal capacity is central to the enjoyment of all other human rights.
What are the legislative gaps at EU and international levels?
Questioned about the existing gaps in international legal framework, Nena Georgantzi highlighted that :
Sometimes the right to choose is limited due to a lack of alternatives: when, for instance, there is no other option than moving to a residential care facility because no support can be provided at the home of the older person.
Some hearing and visual impairments are sometimes wrongly perceived as cognitive impairments that hinder older people’s ability to make decisions for themselves.
Mrs Georgantzi also pointed out the issue of internalized ageism, which leads to people not claiming their rights when they are older.
All these issues are specific to older people and cannot be adequately addressed by the existing international human rights system.
Some good practices exist, but these are marginal improvements, aiming at improving the system and not transforming it, which Nena thinks is necessary in order to ensure the full and equal enjoyment of human rights in old age.
