Background

Traditionally, older age has been associated with frailty, vulnerability and mental and cognitive decline. Although vulnerability is often the basis for protection from abuse and exploitation, groups labelled as vulnerable may also experience additional discrimination and exclusion. When older persons are seen as inherently weak and vulnerable, they may be wrongly deprived of their rights to exercise legal capacity, live autonomously and give informed consent.

The Independent Expert has alerted in previous reports about the risks faced by older persons in exercising choice and legal capacity and reiterated the finding of expert analysis about the inadequacy of the existing international legal framework to address these issues. The Independent Expert’s reports include several examples of taking away the legal capacity of older persons or informally overriding their wills and preferences, especially in care settings, such as through forced institutionalization and when support is provided through technological means. The mandate also clarified that the removal of decision-making powers can constitute a form of emotional abuse.

To guarantee human rights in old age, one must overcome stereotypes and prejudice of older persons as being less worthy and less capable. Retaining control over decisions of daily life affects the enjoyment of all other human rights; the right to choose where and with whom we live, how we spend our money, how we spend our time, and with whom we have relationships, among others. Being denied autonomy on the other hand, is associated with the loss of the basic civil rights and liberty that adults enjoy. This is why recent scholarship and interpretation of human rights norms has prioritized autonomy as the foundation for human rights in old age.

Objectives

The Independent Expert on the enjoyment of all human rights by older persons, Dr. Claudia Mahler, will focus her next thematic report on legal capacity and informed consent of older persons. The report will be presented to the 57^th session of the Human Rights Council in September 2024.

In this report, the Independent Expert will examine the human rights of older persons who are deprived of legal capacity and the ability to provide informed consent, as well as the underlying causes for the restriction of these rights in old age. The report will take stock of laws and polices that address issues of decision-making autonomy, legal capacity, and informed consent for older persons, including measures in place to assist older persons to retain their legal capacity and challenge decisions that would deprive them thereof. The report will also explore the tension between protection and autonomy that permeates discourse on the rights of older persons, and will draw on existing standards to examine how the right to legal capacity and informed consent can be understood and applied in the context of old age.

The Independent Expert will address the issue from an intersectional perspective, in exploring the interactions with other social factors such as gender, sex, race, ethnicity, language, Indigenous identity, disability, sexual orientation, gender identity, religion, social status, place of origin, and immigration status.

The objective of the report is to provide a catalogue of good practices put in place by Governments, as well as an analysis of the gaps in the existing framework and the challenges faced by relevant stakeholders.

Key questions and types of input/comments sought

Legal, policy, and institutional frameworks

Please identify both existing and planned legal frameworks, national plans and policies. Please provide detailed information and relevant documents, if applicable.

1. Is there national legislation or a policy framework that addresses issues of decision-making autonomy, legal capacity and informed consent for older persons?
   1. If so, what is the scope of these provisions?
   2. To what extent were older persons meaningfully engaged in developing and refining these frameworks?
2. Does national legislation allow for the deprivation of legal capacity, guardianship (or other forms of substitute decision-making) and/or involuntary treatment or placement e.g. in health and care settings on the basis of age alone or in combination with other grounds?
   1. Under which circumstances/what type of assessment or criteria are used?
3. Are there national laws that establish a right to supported decision-making for older persons and measures to ensure effective access to supported decision-making services?
   1. Do other legal safeguards for the full exercise of legal capacity in old age exist in your country?

Data and impact

4. What (formal and informal) challenges do older persons face in the exercise of their legal capacity and in which contexts?
5. What are the human rights impacts faced by older persons as a result of being deprived of legal capacity?
6. Are there national surveys or other information about experiences of older persons deprived or at risk of being deprived of their legal capacity? If available, please provide figures and data.

Intersectionality

7. How do other factors (i.e., gender, sex, race, ethnicity, language, Indigenous identity, disability, sexual orientation, gender identity, religion, social status, place of origin and immigration status) impact the enjoyment of older persons’ right to legal capacity?
8. How do these factors influence the human rights impacts faced by older persons as a result of being deprived of legal capacity?

Access to justice

9. What channels exist for older persons to seek redress for the denial of their right to exercise their legal capacity or informed consent?

Access to information and awareness

10. Do older persons have access to information provided in an accessible way regarding options to manifest their choice, to support them and to prevent abuse in their decision-making process?

Access to support measures and services

11. Please provide examples of good practices for providing support and preventing abuse to the exercise of legal capacity and informed consent among older persons, including support services, legally binding advance directives to express their will and preferences and legal counsel, among others.
12. Please provide information on the availability and limitations of such measures (e.g. available only on specific settings, accessibility, affordability, etc)

How inputs will be used

Submissions will be posted on the Independent Expert’s webpage at the time of the publication of the report, except for those including a clear request not to be publicly disclosed.