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.
Key issues include the following:
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.
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.
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.
They do not mandate or actively promote alternatives to substitute decision-making.
