This last case also assumes a more or less stable set of and preferences’ ‘will requiring more than simply to the outside world. It requires a deep ‘translation’ and ongoing process of discovery. It assumes that such a process can approximate to the and preferences’ provided sufficient time and care is ‘will taken. In a sense the person is surrounded by a community of interpretation whose task is not to ascribe a and preference’ but to divine it. ‘will But what about the case where there is, at least to all outward appearances, no and preference’ and we are left to doubt if there ever will be. Well, first of ‘will all, read your neuroscience. Remarkable breakthroughs are being reported almost by the week from around the world on new techniques to communicate even with those in a so-called vegetative state’ a fairly odious term. ‘persistent – We are blessed to have this conversation bout the viability of the pivot in Article 12 in the 21st century. But lets say you don’t have access to that technology and/or we genuinely have a case of the near impossibility of excavating a and preference.’ Aren’t you ‘will inevitably going to have to make decisions as against a person? And ‘for’ ‘with’ isn’t this guardianship by another name? I would say no for three reasons. First of all, our commitment of discovery should apply to all persons. The obvious inflection of guardianship away from the person and toward the process of making decisions for the person by third parties inevitably misses opportunities where discovery might have made a difference. That process simply isn’t there under guardianship because a transfer has been assumed between your capacity to that of another the guardian. Secondly, the iterative process of making – decisions both for and with a person in that situation focuses just as much on sparking the and preference’ as it does on giving it voice. In other words, go ‘will back to the actual wording of Article 12. It does not just talk about supported decision-making. It talks about support to enable a person to exercise legal capacity. This is especially important with respect to people exiting institutions. It is this dimension of augment capacity sparking it that is just absent from – – any guardianship frame. Thirdly, the lodestar of guardianship is interests.’ ‘best As a concept it is under-ambitious, capable of being moulded to suit others whilst
This last case also assumes a more or less stable set of ‘will and preferences’ requiring more than simply ‘translation’ to the outside world. It requires a deep and ongoing process of discovery. It assumes that such a process can approximate to the ‘will and preferences’ provided sufficient time and care is taken. In a sense the person is surrounded by a community of interpretation whose task is not to ascribe a ‘will and preference’ but to divine it. But what about the case where there is, at least to all outward appearances, no ‘will and preference’ and we are left to doubt if there ever will be. Well, first of all, read your neuroscience. Remarkable breakthroughs are being reported almost by the week from around the world on new techniques to communicate even with those in a so-called ‘persistent vegetative state’ – a fairly odious term. We are blessed to have this conversation bout the viability of the pivot in Article 12 in the 21st century. But lets say you don’t have access to that technology and/or we genuinely have a case of the near impossibility of excavating a ‘will and preference.’ Aren’t you inevitably going to have to make decisions ‘for’ as against ‘with’ a person? And isn’t this guardianship by another name? I would say no for three reasons. First of all, our commitment of discovery should apply to all persons. The obvious inflection of guardianship away from the person and toward the process of making decisions for the person by third parties inevitably misses opportunities where discovery might have made a difference. That process simply isn’t there under guardianship because a transfer has been assumed between your capacity to that of another – the guardian. Secondly, the iterative process of making decisions both for and with a person in that situation focuses just as much on sparking the ‘will and preference’ as it does on giving it voice. In other words, go back to the actual wording of Article 12. It does not just talk about supported decision-making. It talks about support to enable a person to exercise legal capacity. This is especially important with respect to people exiting institutions. It is this dimension of augment capacity – sparking it – that is just absent from any guardianship frame. Thirdly, the lodestar of guardianship is ‘best interests.’ As a concept it is under-ambitious, capable of being moulded to suit others whilst
Rights-Enforcement---The-Next-Steps,-UNCRPD-article-12-standards-and-their-implementation-in-legal-frameworks.docx