Acknowledgements endorsements Background methodology executive Summary 11 Recommendations 22 Article — general obligations 38

Guardianship, Estate Management and Mental Health Laws

191. 
     State and territory guardianship, estate management and mental health laws regulate the area of legal capacity, financial management and substitute decision-making. While State and territory laws in this area vary, they all breach, are inconsistent with or fail to fulfil obligations under CRPD.
     
192. 
     Key issues include the following:
     
     1. 
        These laws only apply to people with disability; they are not laws that apply generally to everyone. Under international human rights law, any permissible limitations to human rights must be ‘prescribed by law’ and any law prescribing a limitation to a human right must be of general application. Consequently, to the extent that guardianship, estate management and mental health laws limit the autonomy-related rights of persons with impairment and disability as a specific population group, they are arbitrary and in violation of the right to equality before the law.
        
     2. 
        They provide different and inconsistent tests for assessing a person’s ability to exercise legal capacity, which leads to uncertainty, confusion and inappropriate application of legal principles beyond the specific context in which they were formulated — there is no nationally consistent legislation that outlines the principles and provisions for assessing a person’s ability to exercise their legal capacity.^118.
        
     3. 
        They focus on a person’s capacity to manage their affairs or make decisions, rather than on measures that would enable or support a person to manage their affairs or make decisions.
        
     4. 
        They do not mandate or actively promote alternatives to substitute decision-making.