Protection of Incapacitated Persons: Evolution of Law and Fundamental Rights

The evolution of medical, social and economic sciences and, more generally, of reasoning has profoundly changed the relationship between society and people with disabilities: these persons have turned, from recipients of social protection and care into active part of society. Their full and effective participation is assured on an equal basis with others. That has redeveloped the issue of disability in protecting human rights, as is also demonstrated by the UN Convention on the Rights of persons with disabilities. Consequently, to promote their full integration, international and European laws have recognized the right to their self-determination. A new balance must be found between the vulnerable persons’ aspirations to decide and the support provided by the law. This reference is obviously made to the extension of the management powers that are attributed to the guardian of the incapacitated. On the one hand, the institutes of protection of the persons with disabilities have changed, as much limiting infringement upon their self-determination. On the other hand, the protection of human dignity and the full realization of the person arouse complicated questions on the exercise of the rights of the disabled: sometimes, both regarding non-patrimonial important choices – for example, medical treatment – and also patrimonial ones, where the power to decide must be attributed to the legal representative. Consequently, it is necessary to identify the basis and limits of these powers to grant people with disabilities real, instead of just apparent protection. The themes clearly involve ethical, political and religious values and, therefore, legal ones.