Mexico Guardianship Laws Update

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On the Road to Freedom from Guardianship in Mexico

Court Decision a Move Forward for Rights of People with Disabilities

Carlos Ríos Espinosa

Senior Researcher and Advocate, Disability Rights Division@espinosa_rios

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A demonstrator waves a Mexican flag, Mexico, Sunday, Nov. 18, 2018.
© 2018 AP Photo/Ramon Espinosa

After being denied the right to make decisions for himself his entire life, “Ernesto”, at 50 years old, is finally free to make his own choices.
On March 13, Mexico’s Supreme Court First Chamber issued a groundbreaking ruling giving Ernesto, who has an intellectual disability, the right to decide to marry, sell or rent his house, enter into contracts, and carry out any other legal acts that many of us take for granted.
Until that day, he had been placed under “guardianship,” meaning another person made all these decisions on Ernesto’s behalf.
Guardianship completely strips away the autonomy of the person with a disability and appoints someone else to make all personal decisions on their behalf. The court found this to be discriminatory, saying it contradicts both the constitution and the UN Convention on the Rights of Persons with Disabilities (CRPD). Mexico ratified the CRPD in 2007.
The court’s decision is a giant step. Depriving people with disabilities of the right to make decisions for themselves limits their enjoyment of other rights such access to justice, due process, to live independently, and to be included in the community.
In its decision, the court confirmed nearly all the standards that the UN Committee on the Rights of Persons with Disabilities has laid out when discussing the right to legal capacity. The committee has stated that people with disabilities should enjoy legal control over their own lives, regardless of the degree of support the need to make decisions. This cannot be restricted on the basis of type of disability or the alleged degree of “mental capacity” of a person.
Rather than denying people the right to make decisions, governments should develop systems to support people in making decisions. For example, allowing someone to appoint decision-making supporters.
For now, Mexico’s Supreme Court decision only protects Ernesto, because this type of lawsuit only applies to the individual involved.
What is hopeful is that the guidelines established in the ruling provide a precedent that should be followed by the Mexico City Congress. Mexico should ensure the rights of all people with disabilities.

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