Document Type : Original Article
Authors
1
PhD student in Private and Islamic Law, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran
2
Assistant Professor, Department of Private and Islamic Law, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran
Abstract
The legal status of persons with disabilities, particularly those with mental and psychological disorders resulting in weakened mental capacity, has long been a topic of discussion within legal systems.According to the Convention on the Rights of Persons with Disabilities and the general comment of the Committee individuals with disabilities have the right to legal standing, regardless of the severity or type of their impairments.Disability cannot serve as a legal basis for restricting an individual's rights or allowing interference in decisions related to them without their expressed will and preferences being acknowledged. In this human rights oriented opinion, the differentiation between legal capacity and mental capacity serves as the foundation.While defending the abolition of all forms of guardianship, the comment of the Committee has proposed the criterion of will.When making decisions related to a disabled individual, it is crucial to consider principles such as autonomy, individual independence, and active participation.In doing so, the first step should be to take into account "will and preference." If not available, the next step is to determine the best interpretation of their will and preference.Finally, decisions should be based on what would bring personal fulfillment to the individual. Contrary to the general comment, while defending the exclusion of some of them from legal agency, this article believes that, according to the principles of the Convention, in Iranian law those whose ability to make decisions is weakened or their mental condition is impaired, but this does not reach the incapacity, should be analyzed under the title of incapable.Taking into account its functions, this article has made suggestions to amend guardianship.In Iranian law, the criteria identified in the convention have been reflected at the level of the judicial directive in the judicial field, which is a measure worthy of attention and at the same time requires development.
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