Capacity Trajectory in the Context of Dementia: A Case of Exercising Rights in Troubled Civil Life.

Abstract

For years, Common law and Civil Code have determined the legal age as majority which defines adulthood, giving a presumption of legal capacity to adults. At this age, all adults are presumed to be capable of making their own decisions, protecting their interests and exercising the rights they enjoy in the acts of their civil life. This legal presumption of capacity structures the life-course of adults and allows them to act and make decisions either in daily life or for exceptional civil acts, for instance, marriage. Domestic laws, including French laws, do provide for certain exceptions, especially for persons suffering from disease or disabilities. The use of substitutive decision-making, or coercive legal measures, is increasing. At the same time, these legal substitutive decision-making measures have encountered challenges. The cornerstone Article of International Convention on the Rights of Persons with Disabilities (CRPD) reaffirms the exigence of equal recognition of all persons before the law with equal capacity. The interpretation of this article 12 is subject to considerable controversy. The controversy around CRPD and the paradox between the normative evolution of fundamental rights and the increasing uses of legal substitutive decision-making measures in social practices raise questions about the place of this legal presumption of capacity. In this article, we wish to tackle this controversy by starting with situations where the daily capacity to exercise one s rights becomes an issue for the professional or family circle. What happens when persons seem unable to understand the consequences of their actions or when they behave incomprehensibly according to their close ones? When should others around the person worry about the person s ability to take care of oneself? What happens when a person s ways of functioning change? Is it an indication that his or her state of health is experiencing changes? That the person s needs have evolved? What does this imply for family and friends, especially in terms of actions or substitute decisions? Using the core notion of capacity trajectory, this article intends to empirically shed light on how rights and legal capacity are exercised in situations of vulnerability. We wish to demonstrate that the presumption of capacity requires certain conditions of capacity in practice.