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The constitutionality of conservatorship, (in commemoration to the World Down Syndrome Day).

In the present note, we will expose the legal figure of the conservatorship that persons with any physical, intellectual, emotional and/or mental disability may be subject to, from the legal point of view, and the perspective that the Supreme Court of Justice has had about its constitutionality over the recent years.

Section II of article 450 of the Civil Code of Mexico City, provides that the persons with legal age who are not able to govern or express their will by themselves or by any other way, due to any reversible or irreversible disease, or any physical, sensorial, intellectual, emotional or mental disability, have legal incapacity. The foregoing implies a restriction to the exercise capacity of the persons with disabilities because they must have a legal guardian to make decisions for them, a restriction that according to Article 23 of the Civil Code of Mexico City does not mean reducing the dignity of the person subject to conservatorship.

However, Article 2 of the Civil Code of Mexico City prohibits restricting or limiting the exercise of rights of individuals because of their physical characteristics, disability, or health state. Thus, there may exist a contradiction in the Civil Code of Mexico City because on the one hand, its provisions forbid restricting or limiting the exercise of rights of persons with disabilities and, on the other, the same Civil Code imposes a restriction to legal exercise of individuals with disabilities by appointing them a legal guardian.

On 2011, the Mexican Supreme Court of Justice resolved the case Amparo en Revisión 159/2013, which was brought by an adult with an intellectual disability (Asperger syndrome), who was submitted to a conservatorship trial and to the legal guardianship of his parents, without any notice. He alleged the unconstitutionality of articles 23 and 450 of the Civil Code of Mexico City, arguing that the conservatorship limits his legal capacity in an unfounded manner. When solving the case, the Supreme Court declared the constitutionality of such articles as long as they were interpreted at the light of the social model of disability.

The decision of the Mexican Supreme Court may be inconsistent with Article 12 of the Convention on the Rights of Persons with Disabilities, which provides: “2. States Parties shall recognize that persons with disabilities have legal capacity on an equal basis with others in all aspects of life […]”, provision that was left behind by the Court, which after the constitutional reform of 2011 regarding human rights, must perform a conventionality control of the provisions of the Mexican legal system.

Eight years later, on March 2019, when solving the case Amparo en Revisión 1368/2015, the First Chamber of the Mexican Supreme Court of Justice declared the unconstitutionality of Articles 24 and 450, section II of the Civil Code of Mexico City, considering that those provisions are not compatible with the Convention on the Rights of Persons with Disabilities neither with the Article 1 of the Mexican Constitution, and that it is unconstitutional to deny and/or limit the legal capacity, decision making, freedom of choice, and any other right, of persons with disabilities.

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