On August 26, 2019, the Law 1996 of 2019 came into force, achieving an important advance in the real protection of the rights of people with disabilities.
This norm implements major modifications to the regime on capacity contained in the Civil Code and in provisions related to interdiction of Law 1306 of 2009 . Its main advances are, the recognition of the right to full capacity of people with disabilities and the creation of support mechanisms for the performance of legal acts under equal conditions.
In principle, legal capacity is defined as a power inherent to all people that has two dimensions: the ability to enjoy and the ability to exercise . The first referring to the possibility of being a subject of rights and obligations, while the second, to the possibility of exercising these rights and complying with the obligations contracted within the framework of said exercise.
However, for many years and under the guidelines of a paternalistic system, the exercise capacity of people with disabilities had been disqualified. In particular, with the previous regulation his legal capacity was limited , the judge having the power, on behalf of the State, to appoint a curator for his protection, who would supply all or some of the decisions of his life . This, through figures such as interdiction or disability, depending on whether medical authorities defined the concurrence of absolute or relative disability, respectively.
Although the interdiction process could be promoted by anyone, with legitimate interest or not, under this legal figure it was the curator who watched over the rights of these people in all areas of social life, creating a clear inequality for people with disabilities, as they are prevented from fully and autonomously exercising their economic, civil and political rights, among others.
Specifically referencing the interdiction, the purpose of this process was the declaration that a person with a disability was not in full condition to function on his own ( Law 1306 of 2009, art. 25 ). Therefore, the banned persons could not carry out any type of legal act, and if they did, it would suffer from absolute nullity.
For decades, this legal figure contravened the postulates of the Convention on the Rights of Persons with Disabilities of the United Nations (“ CRPD ”) approved in Colombia with the issuance of Law 1346 of 2009 , which adopted a social model in relation to the matter and recognized that: “disability is a concept that evolves and that results from the interaction between people with disabilities and the barriers due to attitude and environment that prevent their full and effective participation in society, on an equal basis with others ” [1] .
After a review of compliance with the CRPD in Colombia, in August 2016, the United Nations Committee on the Rights of Persons with Disabilities, expressed its concern about the existence of restrictions on the legal capacity of people with disabilities and mainly, against their right to express their free and informed consent.
In this context, the Law 1996 of 2019 was approved, as a late legislative advance with the purpose of overcoming the paradigm of the legal capacity of people with absolute or relative disabilities. As a great advance, the regulations indicate that the ability to carry out legal acts independently is presumed for all persons of legal age with disabilities, who have the right to have the necessary modifications and adaptations to carry them out.
From the explanatory memorandum, it is evident that the main objective of the Law is to establish a supportive decision-making regime , through which people with disabilities can exercise their legal capacity on equal terms. conditions, making use of the support they require for this and with the safeguards for their proper exercise. The foregoing is instrumentalized in the Law through support agreements, advance directives and judicial adjudication of support.
One of the fundamental tools provided by the Law is the creation of support agreements, mechanisms through which a person, of legal age, formalizes the designation of the persons, natural or legal, who will assist him in making decision . Nature The necessary support may be established through the declaration of the person or through an assessment of support, which can be carried out by public or private entities.
However, another relevant instrument is advance directives , in which a person can express in advance their will and preferences regarding one or more legal acts. These directives are mandatory for the support persons designated for this purpose and may refer to health, financial or personal matters, among others.
Third, the judicial award of supports is the process that can be carried out before the family judge by the person who requires the support, or by a different person, by means of which the formal supports necessary for a person are designated in a situation of disability . In this case, the judge must always favor the will and preferences of the person with a disability, guaranteeing their full participation in the process, under penalty of nullification.
Although the provisions on judicial adjudication of support have not yet fully entered into force, the Law establishes that judges may exceptionally determine the necessary support for people with disabilities who are unable to express their will. Meanwhile, in relation to the ongoing interdiction or disqualification processes, the immediate suspension thereof is decreed , without prejudice to the application of precautionary measures, to guarantee the protection of the rights of the population .
For all the foregoing, we are facing a great advance in the protection of the rights of people with disabilities , turning the Law 1996 of 2019 into a recognition of their dignity and value as human beings, representing a manifestation of the social model on disability, in which their will begins to be heard.
By Fathia Jalile Zapata , Associate of the Practice Group Corporate, Mergers & amp; GPA Acquisitions .
[1] United Nations Convention on the Rights of Persons with Disabilities. Preamble. Literal e). 2006.
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