In 2018, the Report of the Special Rapporteur brought to light the need for the Philippines to review the legal provisions which allow for the restriction of legal capacity on the basis of impairment, abolish the current guardianship regime, and replace it with a supported decision-making system. Supported decision-making is a mechanism of accommodation that would enable an individual to make and communicate their own decisions instead of delegating that power to another person, as in substituted decision-making systems like guardianship.
The Special Rapporteur’s recommendations are based on Article 12 of the Convention on the Rights of Persons with Disabilities, which mandates States Parties to protect the full legal capacity of persons with disabilities on an equal basis with others and is also known as “the right to have rights.”
This paper argues that this obligation should not only be interpreted in a way that commands States Parties to take a less restrictive route in maintaining the ideal decision-making system in theory, but at the same time enables them to be flexible enough to accommodate all types of decision-making needs in practice. It first analyzes the legal definition of disability in the Philippines. Next, it examines guardianship as the country’s primary substituted decision-making system, then discusses the supported decision-making model. It concludes with recommendations for the revision of the guardianship regime and the adoption of supported decision-making into the Philippine legal system.