Mental and Intellectual Capacity and Contractual Freedom: Assistive Decision-Making Matters

Despite the advent of the U.N. Convention on the Rights of Persons with Disabilities (CRPD) in 2006, and the replacement of the medical model of disability with the social model of disability therein, the issue of capacity in contract law has remained largely unchanged. Legal capacity and the capacity to contract in most liberal states continues to dictate how persons with mental and intellectual disabilities are subject to substitute decisionmaking arrangements whereby their own personal will is extinguished in favor of that of their guardian. This is in violation of assistive decisionmaking arrangements endorsed and cemented by the CRPD, which allows disabled persons not only to achieve full legal personality and contractual autonomy, but also to realize their right to personal liberty and dignity.