The case of Magdolena Recasi v. Hungary. Views of the Committee on the Rights of Persons with Disabilities dated September 6, 2021. Communication No. 44/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Hungary.
As seen from the text of the Views, the author claimed that, in violation of her rights under articles 3 and 12 (paragraphs 4 and 5) of the Convention, the State party had failed to take measures that included appropriate and effective guarantees for her to exercise her legal capacity in financial matters. At the time of signing the life insurance contract, the author was 42 years old and healthy. The author's life insurance to cover funeral expenses in the event of her death was an unjustified financial decision made by her guardian and the guardianship authority without consulting the author. As a result, she was deprived of the opportunity to make decisions on financial issues directly related to her. This decision had a serious impact on her financial situation. She was unable to redeem the contract without incurring significant financial losses. The structure of the contract clearly did not meet her highest interests, will or preferences. The author also argued that, in accordance with article 12, paragraph 3, of the Convention, States parties are obliged to provide support to persons with disabilities in the exercise of their legal capacity. States parties should refrain from depriving persons with disabilities of their legal capacity and, on the contrary, should provide them with access to the necessary support so that they can make legally binding decisions. Support in the exercise of legal capacity should respect the rights, will and preferences of people with disabilities and should never be reduced to making decisions for them (paragraphs 3.1 - 3.2 of the Considerations).
The Committee's legal position: In accordance with article 12 of the Convention, States parties are obliged to recognize that persons with disabilities have legal capacity on an equal basis with others in all aspects of life. According to article 12, paragraph 4, of the Convention, States parties are obliged to ensure that all measures related to the exercise of legal capacity provide appropriate and effective guarantees for the prevention of abuse in accordance with international human rights law. Such guarantees should ensure that measures related to the exercise of legal capacity are guided by respect for the rights, will and preferences of a person, are free from conflicts of interest and undue influence, are proportionate to the circumstances of that person and adjusted to them, are applied for as short a period as possible and are regularly checked by a competent, independent and impartial body or judicial an instance. The Committee recalls that, in accordance with article 12, paragraph 5, of the Convention, States parties are also obliged to take all appropriate and effective measures to ensure the equal right of persons with disabilities to manage their own financial affairs (paragraph 11.5 of the Views).
According to paragraph 21 of general comment No. 1 of the Committee on the Rights of Persons with Disabilities, in cases where, after considerable effort, it still turns out to be practically impossible to establish the will and preferences of an individual, then instead of establishing "higher interests", "the best interpretation of will and preferences" should be applied. This is aimed at respecting the rights, will and preferences of an individual in accordance with paragraph 4 of article 12. In relation to adults, the principle of "higher interests" does not serve as a guarantee, which is consistent with article 12, if we talk about adults. The paradigm of "higher interests" should be replaced by the paradigm of "will and preferences" to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others (paragraph 11.6 of the Considerations).
The Committee considers that, although States parties have some discretion in determining the procedural mechanisms that enable persons with disabilities to exercise their legal capacity, it is necessary to respect the procedural guarantees and rights of specific persons (paragraph 11.7 of the Views).
The Committee's assessment of the factual circumstances of the case: the issue that the Committee had to decide was whether the decision of the guardianship authority authorizing the author's guardian to conclude a life insurance contract on her behalf violated her rights provided for in paragraphs 3, 4 and 5 of article 12 of the Convention. The Committee took note of the author's claims that she had not been consulted prior to the conclusion of the life insurance contract and that her will and preferences had not been taken into account (paragraph 11.2 of the Views).
The Committee also noted the following - at the time of the conclusion of the contract, the author was only 42 years old, she was in good health, and at that time her life was not in danger. The Committee also indicated that the author's condition had improved significantly due to the treatment received. He took into account the author's statement that the conclusion of an insurance contract, the sole purpose of which was to cover the costs of her funeral, was, in her opinion, an irresponsible financial decision contrary to her interests. He stressed that although, under the terms of the contract, the author had the right to buy out the insurance, she could not receive the entire amount, which was a significant loss for the author, who received only a monthly pension of only $203. In this regard, he drew attention to the fact that the State party had not explained the urgency or necessity of concluding a life insurance contract on behalf of the author, taking into account all the circumstances (paragraph 11.4 of the Considerations).
The Committee noted that the State party has failed to demonstrate that it has made any serious efforts to determine the author's will and preferences or the best interpretation of her will and preferences (paragraph 11.6 of the Views).
The Committee also took note of the author's argument that the procedure followed by the guardianship authority and her guardian also ignored the requirements of article 12, paragraph 3, of the Convention. According to the provisions of this paragraph, the State party is obliged to provide persons with disabilities with access to the support they may need in the exercise of their legal capacity. In this regard, the Committee recalled that in its concluding observations on the State party's initial periodic report, it recommended that the State party make effective use of the ongoing review process of its national civil code and related laws and take immediate measures aimed at partially abolishing guardianship and moving from substitutive decision-making to a supported decision-making model a decision that respects human autonomy, will and preferences and is fully consistent with article 12 of the Convention, This includes the right of a person as an individual to give and withdraw informed consent for medical treatment, to have access to justice, to vote, to marry, to work and to choose a place of residence. In the author's case, the Committee found that, given that the author's legal capacity was completely limited at the time of the conclusion of the contract, she was not provided with any opportunity or support or necessary conditions to exercise her rights in relation to financial matters (paragraph 11.7 of the Views).
The Committee's conclusions: The decision of the guardianship authority to allow the author's guardian to conclude a life insurance contract on behalf of the author, without making significant efforts to determine her will or preferences, or the "best interpretation" of her will and preferences, constituted a violation of her rights provided for in paragraphs 3, 4 and 5 of article 12 of the Convention.