Mexico’s States Must Take Action to Ensure Equal Legal Capacity

Mexican States Must Act on Legal Capacity ‘Guardianship’ Provisions to Promote Equal Rights for Individuals with Disabilities and Older Adults

Background

On April 24, 2023, the Mexican Congress abolished guardianship at the national level through the national civil and family procedure code, allowing all individuals aged 18 or older to have full legal capacity and the right to supported decision-making. This was a major achievement for human rights in Mexico, but it requires immediate action from all 32 state civil codes and notary public laws to reform their legislation and ensure that these rights become a reality. Failure to do so puts individuals with disabilities and older adults at risk, as they are still treated as incapable of making their own decisions, denying them basic human rights and legal protection.

In 2021, the Supreme Court in Mexico ruled that guardianship was unconstitutional and discriminatory against people with disabilities. However, many states across the country have yet to implement this ruling in their legislation. More than 100 organizations, including Human Rights Watch (HRW), have urged state legislators to reform their civil codes and notary public legislation to provide alternatives to guardianship for people with disabilities and older adults.

The Current Legal Framework

The civil codes of all 32 states, including Mexico City, still consider people with disabilities and older adults incapable of making their own decisions, and therefore give notaries the discretion to determine the capacity of individuals. In Mexico City, for instance, if a person with Down Syndrome goes to a notary public to register their will, the notary can determine the person is incapable of decision-making and deny them service. As a result, the new national legislation that grants full legal capacity and supported decision-making does not fully come into force until 2027. This gap in legislation puts people with disabilities and older adults at risk of discrimination until there is implementation by local legislatures.

Older adults are particularly affected by this legislation, constituting 40.9 percent of people with disabilities in Mexico, despite accounting for only 16 percent of the total population, according to the 2020 census. Therefore, as the country’s population continues to age, this issue becomes even more pressing.

The Urgent Need for Reform

Human rights advocates argue that all state legislation must align with the decision of the Supreme Court, the provisions of the international human rights law, and the national reform. Therefore, state legislatures need to reform their civil codes and notary public legislation as soon as possible to create a human rights-based supported decision-making system. This system would ensure respect for the will and preferences of people who require support, rather than treating them as incapable and denying their basic rights as if they had no rights, which was the case under the guardianship system.

Furthermore, on May 17, 2023, more than 100 national and international civil society organizations, organizations of people with disabilities, and independent experts jointly wrote to Congress to request the adoption of a resolution urging all state legislatures to align their civil legislation with the national code. Mexico City’s Congress has already introduced a bill to reform its Civil Code and Notary Public Act, which can be used as a model by other state legislatures.

The Way Forward

The constitutional rights of individuals with disabilities and older adults are essential, enshrined in the United Nations human rights treaties that bind Mexico, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Therefore, state legislators must take immediate action to reform their civil codes and notary public legislation to respect these rights.

Inaction on this issue will perpetuate a system of exclusion, discrimination, and violence against individuals with disabilities and older adults. As Carlos Rios Espinosa, the associate disability rights director at Human Rights Watch, highlighted, “many people in Mexico are labeled ‘incapable’ and unable to enjoy their rights because their state government failed to create the legal framework enabling them to do so…states need to hurry up.” Therefore, state legislatures must move quickly to align their laws with the new national legislation and ensure that all individuals have equal access to legal protection.

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