Legal Capacity and the Search for an Equality-Respecting Decision-Making Law

Most of us take for granted that we will be permitted to make decisions that govern our personal lives. Decisions in matters large and small are expressions of autonomy. Yet, decision-making rights – regarding medical, financial, and many other matters – are subject to a caveat: We must have legal capacity, a socio-legal construct that varies across time and place. Today's capacity and decision-making law, in particular, is at a crossroads. Domestically and internationally, policy makers and stakeholders are actively engaging difficult questions about how to render decision-making during periods of vulnerability from, for example, cognitive, mental or intellectual disability, more consistent with autonomy and equality, while also providing necessary safeguards. Much of the current debate centers on two groups of alternatives. One, a conventional approach to decision-making law, pairs a cognitive functional approach to legal capacity with a "substitute decision-making" system wherein persons deemed incapable have another appointed to decide for them. Critics argue that this model wrongly disenfranchises individuals and fails to reflect the social model of disability. The other is "supported decision-making" which, in its strong version, sees legal capacity as universal and law's role as providing the supports required for the exercise of that capacity. Critics of this approach say making people legally responsible for decisions they might not have understood amounts to abandonment. Against this background, this paper considers a third model, "joint decision-making", which locates decisions within a collective. Joint-decision-making has received far less academic attention, even while some jurisdictions are adopting it in policy. The paper discusses the meaning and role of joint-decision making by locating it among substitute and supported models; reviewing some joint decision-making tools – namely co-decision-making and personal support networks – in use in Canada and Ireland; and considering some possible implications for Canadian law and policy.