Notarial authority is the necessary institutional support for people with disabilities, at the service of a more just, participatory and inclusive society


Notarial authority is the necessary institutional support for people with disabilities, at the service of a more just, participatory and inclusive society


The Assembly of the 87 Notariats Members of the International Union of Notaries studied, at its last meeting in Buenos Aires on October 1st, the following topic:"The notary and the persons in situation of vulnerability: future challenges."


The various stakeholders from the United Nations (Catalina DEVANDAS AGUILAR, United Nations Special Rapporteur on the Rights of Persons with Disabilities; María Soledad CISTERNAS REYES, UN Special Envoy on the Rights of Persons with Disabilities and their Accessibility; Theresia DEGENER, President of the United Nations Committee on the Rights of Persons with Disabilities), the Hague Conference on Private International Law (Ignacio GOICOECHEA, Representative for Latin America and the Caribbean) and a national reform Body (María Graciela IGLESIAS, Head of the National Mental Health Review Body - Argentina) all together pointed out the blatant paradigm shift in the consideration of legal capacity of people with disabilities.


In fact, the United Nations Convention on the Rights of Persons with Disabilities, dated December 13, 2006 and ratified by 177 States Parties, enshrines a model of recognition of full and universal legal capacity for all, the so-called support model in decision-making, instead of the traditional model of incapacitation.


Thus, legal capacity is confirmed as a human right that cannot be deprived of, and distinct from the mental capacity to make decisions, which varies from one person to another depending on various factors. The result is the obligation to seek and determine in all situations, and with a view to ensure equal treatment for all persons, the will and preferences of the person with disabilities, establishing support measures in decision making instead of replacing their decision with that of an authorized representative who evaluates their supposed best interest.


To enable this respect of the will of the person with disabilities, three central elements have been identified: accessibility, determination of support and implementation of reasonable adjustments. Among these elements, the central figure of support has been widely highlighted. A support is in no way a decision-making agent replacing the person with disability. On the contrary, the support must allow, thanks to methods of alternative communication for instance, the manifestation of the will of the person with disabilities.


The notary as public authority is a legitimate figure of institutional support for people with disabilities, in particular thanks to its proximity to the citizen and his key role in the framework of preventive justice. 


The notary whatever the race, culture, condition, formation or any other personal or social circumstance of the citizen who requires his services, is configured as institutional support for the exercise of rights and as an authority in relation to safeguards in a double sense, positive, to respect the rights, will and preferences, and negative, to prevent abuse and undue influence.


The debates focused on ways to secure notarial acts, ensure their validity and thus ensure legal certainty in the application of support systems, otherwise, people with disabilities are left out of the legal and economic market. States must profoundly reform their legislation to allow full application of the Convention and a peaceful practice for legal professionals, judges and notaries.


All the speakers concluded on the unique and crucial role of the notaries in the implementation of ta legal protection system and autonomy promotion of the persons in situation of vulnerability, nationally and when they move internationally. The Buenos Aires General Assembly, in its fifth final recommendation, "calls upon the legal creativity of the notary to develop new legal instruments that respond to the new social reality, as has been the case in other areas (... ) ".


Through its collaboration with international organizations, the Notariat wishes to enable all citizens to "move forward in a more just, more participatory and more inclusive society" as Catalina Devandas Aguilar wishes. 




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