more fidelity to old postulates), new contours (leaving a deficits fixation in the dustbin of legal history) and new ambitions (based on a faith in human possibilities). As is usual with any moment of profound change, the pivot in Article 12 has deep roots which spread much, much farther than the law itself. And its implications are profound for policy-makers and legislators alike. It is fair to say that we are only at the beginning. It is also fair to say that it is a work in progress – and that we all have a role to play on the construction site. Its not simply a matter for the State to legislate – we all have to find new ways of discovery – new ways to find and release the will and preference of human beings long forgotten except to those who love them. This is why the pilot projects taking place here in Bulgaria and indeed throughout the world. This calls for a new art and science of human discovery which is also only at the beginning – but it is full of promise and brings out the best in human beings – a belief in each other and in human possibilities against the odds. This is a with many layers – even many lawyers! Perhaps the simplest is the legal layer. From a legal point of view the main inflection point came with the drafting of Article 12 in the UN CRPD. First of all, it doesn’t look like the traditional – and rather turgid – legalese on legal capacity. It sparkles with fresh ideas – unfamiliar ideas especially in the context of disability. Frankly, I don't think we fully saw its implications at the time. We were primarily concerned with ‘civil death’ – the almost complete shrouding of the person behind the legal form of plenary guardianship – the surrender of personhood into the hands of guardians often with motivations that were not so laudable. We saw plenary guardianship almost as an evil cloaking device – something that had to be dissolved to let people breath and take charge of their own lives. If only we could roll back the curtain that would be enough. The interesting thing is that many of us – myself included – accepted at the time that there would be some for whom this uncloaking would never be enough.
This last case also assumes a more or less stable set of ‘will and preferences’ requiring more than simply ‘translation’ to the outside world. It requires a deep and ongoing process of discovery. It assumes that such a process can approximate to the ‘will and preferences’ provided sufficient time and care is taken. In a sense the person is surrounded by a community of interpretation whose task is not to ascribe a ‘will and preference’ but to divine it. But what about the case where there is, at least to all outward appearances, no ‘will and preference’ and we are left to doubt if there ever will be. Well, first of all, read your neuroscience. Remarkable breakthroughs are being reported almost by the week from around the world on new techniques to communicate even with those in a so-called ‘persistent vegetative state’ – a fairly odious term. We are blessed to have this conversation bout the viability of the pivot in Article 12 in the 21st century. But lets say you don’t have access to that technology and/or we genuinely have a case of the near impossibility of excavating a ‘will and preference.’ Aren’t you inevitably going to have to make decisions ‘for’ as against ‘with’ a person? And isn’t this guardianship by another name? I would say no for three reasons. First of all, our commitment of discovery should apply to all persons. The obvious inflection of guardianship away from the person and toward the process of making decisions for the person by third parties inevitably misses opportunities where discovery might have made a difference. That process simply isn’t there under guardianship because a transfer has been assumed between your capacity to that of another – the guardian. Secondly, the iterative process of making decisions both for and with a person in that situation focuses just as much on sparking the ‘will and preference’ as it does on giving it voice. In other words, go back to the actual wording of Article 12. It does not just talk about supported decision-making. It talks about support to enable a person to exercise legal capacity. This is especially important with respect to people exiting institutions. It is this dimension of augment capacity – sparking it – that is just absent from any guardianship frame. Thirdly, the lodestar of guardianship is ‘best interests.’ As a concept it is under-ambitious, capable of being moulded to suit others whilst
are woven of many strands and that logical is perhaps the least important when it comes to major inflection that go to form ‘our’ story.’ I started with a from Bruce Springstein. It expresses deep bonds, almost a mini-world shared by two people and a deep sense of loss – a loss of companionship but also a loss of ‘self’ flowing from separation. It captures well our social selves and the constant and painful process of being in each other’s life and then simply being. Of course ‘we’ at least have the good fortune to experience this and evolve as result. And I end with a quote from Arthur Koestler from his novel ‘Darkness at Noon,’ (1940 at 204-205): “He had believed that he had drunk the cup of humiliation to the dregs. Now he was to find that powerlessness had as many grades as power; that defeat could become as vertiginous as victory, and that its depths were bottomless.” He was writing about totalitarianism. He may as well have been writing about guardianship – about its powerlessness and humiliation. Lets end it and create a new future with Article 12 prodding us forward. Support yes – discovery most assuredly. Thank you.