כיצד לעצב מדיניות, חקיקה וטריבונל של כשרות משפטית? שימוש בגישת "עיצוב מערכת הסכסוך" להנגשת זכויותיהם של אנשים עם מוגבלויות

The right to legal capacity within human rights not only signifies the status of being a legal entity but also encompasses the authority to actively engage in various undertakings, transactions, and determinations that pertain to one's existence. Furthermore, it embeds the essential prerogative to receive assistance when navigating the decision-making landscape. However, despite this overarching principle, legal capacity can be restricted under certain circumstances, primarily when there is a perceived incapacity in decision-making. This often leads to the imposition of alternative decision making mechanisms as a protective measure to safeguard the individual's well-being. These legal capacity proceedings typically center around older adults and individuals with cognitive or intellectual disabilities, a phenomenon eloquently termed as "civil death" by scholars championing the cause of disability rights. The restriction of legal capacity raises poignant concerns, particularly regarding its potential ramifications on people’s access to justice. These concerns have acted as catalysts for both international and national policy and legislative reforms, placing a heightened emphasis on upholding the right to legal capacity. Article 12 of the Convention on the Rights of Persons with Disabilities (“CRPD”) and Amendment 18 to the Israeli Legal Capacity and Guardianship Law manifest these reforms. The primary vehicle through which this emphasis is channeled is the framework of supported decision-making and the focus on the person’s will and preferences instead of their “best interest”. Yet, even with these commendable efforts, debates persist, creating a crucible of discussion around the optimal design of legal capacity policies, legislation, and tribunals. The crux of this discourse revolves around striking a delicate balance between the autonomy-focused paradigm and the tools required to harmonize the respect for individuals' will and preferences with the imperative to shield them from potential harm. This ongoing debate underscores the inherent challenges in adapting traditional legal systems to embrace the evolving social norms. In response to these persistent debates, this article proposes a novel approach that addresses the foundational principles of legal capacity and the critiques surrounding supported decision-making. The strategy intertwines theoretical constructs with pragmatic considerations, weaving a comprehensive narrative through integrating disability rights and dispute system design (DSD). A proposed solution emerges as a "disability-rights-based dispute system design," envisaged as a guiding framework in the evolution of legal capacity frameworks. This innovative design advocates a fundamental revision of the pillars and conventions underpinning legal capacity frameworks, replacing them with a structure firmly rooted in the principles of disability rights. This is done by providing a “legal capacity” and “disability rights” interpretation to DSD’s six elements: goals, stakeholders, context and culture, process and structure, resources, and successfulness, accountability and learning. By narrowing the gap between the ideals of legal capacity and their tangible realization, the focus shifts to creating dispute and pre-dispute mechanisms that not only respect but actively enhance legal capacity. Consequently, the disability-rights-based DSD stands as a promising approach to effectively navigate legal capacity issues and fortify the channels leading to justice for people with disabilities and older adults.