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Elder Law Prof Blog
Katherine C. Pearson, Editor, and a Member of the Law Professor Blogs Network on LexBlog.com

Hungary adoptes major revisions to adult guardianship laws

By Elder Law Prof Blog

Courtesy the Mental Disability Advocacy Centre

Budapest, 22 September 2009.Members of the Hungarian Parliament voted for a new Civil Code yesterdayevening. In doing so they ensured that Hungary becomes the first country in theworld to reform its legal capacity legislation in line with its obligationsunder the UN Convention on the Rights of Persons with Disabilities (CRPD).

 

Hungary’s old Civil Code was the piece of legislation whichregulated a range of civil law issues. In the area of disability it allowed forthe total deprivation or partial restriction of a person’s legal capacity andtheir placement under guardianship. There were no alternatives to guardianshipfor people who required assistance to make legally-binding choices in theirlives. Approximately 80,000 adults in Hungary are under guardianship, twothirds of whom are legally prohibited from making important decisions. Underfull guardianship people were denied the right to a range of civil andpolitical rights such as the right to decide where to live, which meant thatthe majority of people in long-term residential institutions were placed thereby their guardians, irrespective of the adult’s wishes. The right to marry andfound a family, as well as the right to manage one’s own property, to work andto vote were also compromised.

 

The new Civil Code changes this legislative landscape. Highlightsof the new legislation include:

  • A legislative ban on plenary guardianship.

  • The provision of a new form of partial guardianship: partial in terms of specific areas of decision-making, and partial in terms of decisions needing to be made jointly between the adult and the guardian.

  • Supported decision-making, which is an alternative to guardianship. Supported decision-making means that the adult’s legal capacity remains intact. It enables a network of supporters to assist the adult in making their own decisions, thereby enhancing their self-determination.

  • Advance directives, whereby adults can plan for their future when cognitive difficulties may prevent them from making decisions without assistance.

  • All of the above measures are available to persons who need assistance because of their mental condition, intellectual capabilities or addiction.

This legislative reform marks significant progress towardsHungary’s compliance with international human rights law, notably the CRPD,which is legally binding upon Hungary. MDAC has been working for the past twoyears in a coalition with other non-governmental organisations. The coalitionhas advocated intensively for guardianship reform and the introduction ofalternatives, reminding the government of its obligations under the CRPD toinclude the involvement of persons with disabilities in legislative and policyreform. The coalition welcomes the legislative process leading to the adoptionof a Civil Code that has realized the principle of “Nothing about uswithout us”.

 

Whilst MDAC and ÉFOÉSZ congratulates Members of the HungarianParliament, they call on politicians to continue to bring Hungary in line withits obligations under the CRPD. Included in MDAC’s and ÉFOÉSZ’s wish-list oflegislative and policy reform are:

 

  • Ensuring that the legal definition of disability is broadened to include persons with (or labelled with) psycho-social (mental health) disabilities (to fulfil the obligation in Article 1 CRPD).

  • Changing the Constitution to remove the prohibition on the right to vote for adults without full legal capacity (to fulfil the obligation in Article 29 CRPD).

  • Taking measurable steps to make real the right to live in the community by reducing the numbers of people in large residential institutions, and creating a range of services in community settings (to fulfil the obligation in Article 19 CRPD).

  • Removing from the quasi-governmental National Disability Council the responsibility for independent monitoring of the Convention’s implementation, and giving the mandate to the Parliamentary Ombudsman with an increased funding to match the expanded mandate (to fulfil the obligation in Article 33(2) CRPD).

  • Ensuring that a Government minister oversees a “focal point” to coordinate disability policy across Government departments (to fulfil the obligation in Article 33(1) CRPD).

More information

 

For interviews please contact Gábor Gombos, MDAC Senior AdvocacyOfficer, tel. +361 413 2730, mdac@mdac.info.