Thanks to Japan Down Syndrome Society for providing this information.

The current situation

Recently, decision-making by people with disabilities is gathering attention in Japan.

The “adult guardianship system” was created to protect those who have insufficient capacity to make decisions, i.e., those with intellectual or mental disabilities.

Their rights may be restricted by the family court upon petition by family members or related persons

The family court may appoint a guardian, conservator or assistant/supporter depending on the person's condition, judging from a doctor's certificate or other documents.

If the person is considered to lack judgment then a guardian is appointed. The guardian makes decisions on behalf of the principal decision-maker as an agent of the principal.

If the person's judgment is considered severely impaired then a conservator is appointed. A conservator may also have the right of representation.

A person with a disability cannot perform important legal acts without the consent of the conservator or assistant.

There are criticisms for the systems of substitute decision-making such as guardianship; the guardian has an obligation to respect the person’s wishes.

However, there are difficulties in achieving respect for the person’s wishes.

Recently, the importance of decision-making support for the individual has been recognized.

A guideline about decision-making support has been established for adult guardianship.

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Stories.

An adult ward was granted the right to vote as a result of a court case in which a person with Down syndrome sued a provision of the Public Offices Election Law that would have eliminated his right to vote if he had an adult guardianship, claiming that the law violated the Constitution.

Appropriate measures regarding restrictions on the rights of adult wards have been implemented.

The elimination of the disqualification clause, i.e., the treatment of uniform exclusion, has been revised to an individual examination to determine on a case-by-case basis whether or not the applicant is competent to meet the qualifications.

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What needs to change?

We believe it is essential to foster an awareness that even if a person has an intellectual or mental disability, we are all members of this society together.

Improving the supported decision-making is one approach to enable a person with Down syndrome to exercise legal capacity of his/her own volition.

Furthermore, improving the supported decision-making to draw out the potential power of the person.

The potential can realize to make their decisions to express themselves.

For this reason, JDS is working to support self-advocates.

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What the Committee on the Rights of Persons with Disabilities report says.

Taken from the Concluding observations report, 2022:

Concerns.

• Legal provisions that deny the right of persons with disabilities to equal recognition before the law, by allowing restriction of their legal capacity, in particular persons with psychosocial and/or intellectual disabilities, based on assessments of their mental capacity, and by perpetuating substitute decision-making systems, under the Civil Code;
• The Basic Plan on the Promotion of the Use of the Adult Guardian System approved in March 2022;
• The use of the term “the best interest of a person” in the Guidelines for Support for Decision-making relating to the Provision of Welfare Services for Persons with Disabilities, of 2017.

Recommendations.

• Repeal all discriminatory legal provisions and policies with a view to abolishing substitute decision-making regimes, and amend the civil legislation to guarantee the right of all persons with disabilities to equal recognition before the law;
• Establish supported decision-making mechanisms that respect the autonomy, will, and preferences of all persons with disabilities, regardless of the level or mode of support that they may require.

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Take action.

Contact Japan Down Syndrome Society to support this campaign in your country.