Advancing Right to Decide, Recognizing Interdependence

Cristián Mendoza[1]

Carlos Ríos Espinosa[2]

Ernesto Rosas Barrientos[3]

I. Background

The National Code of Civil and Family Procedure (CNPCF), published in the Official Gazette of the Federation on June 7, 2023, represents an unprecedented milestone in the legal history of the country, the region, and the world.[4] While various countries have previously adopted new legal capacity models-shifting from a system of substituted decision-making to one that fully recognizes legal capacity and establishes supports for its full exercise-Mexico has extended the coverage of this right to the entire adult population, not just to people with disabilities, as has traditionally been the case in other countries in the region.

Substituted decision-making models are as old as law itself, with precedents dating back to ancient Greece and the Roman Empire. It is well known that Roman law had a profound influence on the legal traditions of continental Europe, which were later adopted by most Latin American countries through colonization. Classical Rome had well-established institutions that excluded certain groups from engaging in legal interactions, creating mechanisms through which third parties could manage both the property and affairs of specific populations. These included children, enslaved persons, women, and individuals who, due to their conduct (such as those who squandered their wealth) or status (such as those with intellectual disabilities or mental health conditions), were deemed incapable of making decisions for themselves. Specifically, individuals categorized under capitis deminutio-meaning a "diminution of capacity"-were excluded from exercising legal rights.[5]

Over time, there has been a gradual dismantling of these incapacitating models that restricted the rights of certain populations. The abolition of slavery, the progressive recognition of women's rights-though still facing legal and practical barriers-and the acknowledgment of the evolving autonomy of children and adolescents are clear examples of this shift. Despite undeniable progress in expanding rights in various regions of the world, some populations have remained marginalized for different reasons, including people with disabilities and older people.

The delayed recognition of the rights of people with disabilities and older prople is not only linked to the persistence of outdated legislative models that fail to include these groups but also to influential contemporary legal theories, such as the guarantee-based theory (teoría garantista) developed by Luigi Ferrajoli.[6] In his typology of fundamental rights, Ferrajoli argued-until relatively recently-that civil and political rights were contingent on historical and political relationships (such as defining who is considered a person and who is a citizen). However, he also suggested that certain rights applied only to those with legal capacity to act, as if this concept were an immutable fact, beyond historical context and part of the natural order of things.

Historically, it has been assumed that certain groups of people, due to their specific conditions, should be treated differently from others and, consequently, deemed incapable of acting in legal matters. This belief has been closely tied to mental health conditions or cognitive abilities, as if their supposed incapacity were a natural, self-evident truth. This notion was significantly challenged with the adoption of the Convention on the Rights of Persons with Disabilities (CRPD)[7] by the United Nations General Assembly in 2006-which entered into force for Mexico on May 3, 2008-and more recently, with Mexico's ratification of the Inter-American Convention on the Human Rights of Older Persons in 2023.[8] According to these international instruments, both people with disabilities and older people, as full rights holders, are entitled to full legal capacity simply by virtue of being human beings, regardless of their level or assumed degree of disability. This distinction has prompted a reconsideration of the guarantee-based theory, detaching legal capacity from an individual's presumed mental capacity.[9]

Indeed, to use Luigi Ferrajoli's terminology, with the entry into force of these instruments, legal capacity has ceased to be a hypothetical right-conditional upon an individual's cognitive or intellectual abilities-and has instead become a thetic right. This means it is an inherent right of every person, simply by virtue of their humanity, much like the right to equality and non-discrimination, the right to personal liberty, and the right to life. At least, this is the case in some countries, including Mexico, where international human rights law is intrinsically part of the constitutional framework used to analyze the protection of rights.[10]

Beyond the impact these international legal instruments have had on legal theory, what interests us now is an analysis of the scope of the CNPCF and its implications for the recognition of this fundamental right.

II. The Expansion of Rights

The first key aspect to highlight is how the CNPCF addresses legal capacity and the right to supported decision-making. As noted in the previous section, unlike other reforms on the same topic in Latin America, Mexico did not restrict the right to supported decision-making solely to people with disabilities or older people. Instead, it extended this right to all individuals, regardless of whether they have a disability. This approach aligns with the core principle that also guided the adoption of the CRPD-namely, that this international instrument does not establish new rights but rather provides a specific framework to ensure that people with disabilities can enjoy and exercise their rights on an equal basis with others.[11]

This expansion also challenges traditional notions of autonomy. To exercise personal autonomy, human beings rely on various interactions that must be recognized. In daily life, most people turn to different informal supports when making decisions about their legal affairs and personal matters-such as which property to acquire, whom to marry, where to live, what job to accept or seek, and what political choices to make, among others. Now, these interactions can be legally recognized through formal legal mechanisms. This is precisely what Mexican law now acknowledges with the adoption of the new CNPCF, making it a unique development worldwide.

III. Types of Supports and Safeguards for the Exercise of Legal Capacity

We now turn to the scope of what it means to have supports for the exercise of legal capacity. The CNPCF refers to a non-exhaustive range of supports that a person may use to exercise their legal capacity. It provides a non-limiting list of the types of supports that an individual may formalize through a contract or designation, in accordance with applicable substantive legal provisions. As is well known, substantive civil law specifically regulates legal capacity. However, the new national procedural framework establishes certain guidelines regarding what local civil codes may include.

The CNPCF specifically addresses procedural aspects related to exercising legal capacity with support. It establishes the only judicial procedure required for determining supports for legal capacity, which we will examine shortly. However, it also provides general principles based on international human rights law. The first principle affirms that all individuals have the right to full legal capacity and may use support for decision-making. Additionally, it states that relying on supports for legal capacity is an optional right, meaning no one can be compelled to exercise their legal capacity through supports (Article 445 CNPCF).[12]

The CNPCF outlines three forms of support for the exercise of legal capacity, though this does not preclude state-level civil codes from including others. The first type relates to communication-that is, support that enables an individual to express their will and preferences or to understand relevant information for making legal decisions. The second concerns comprehension, meaning support in understanding specific legal acts, whether substantive or procedural, and their consequences. The third involves expression of will, recognizing that some individuals communicate through alternative means, such as pictographic boards or electronic voice synthesizers. These alternative forms of communication are explicitly acknowledged as valid, and others may assist in their interpretation if requested by the person exercising their rights.

Furthermore, Article 445 of the CNPCF establishes that no one is required to use supports when exercising their legal capacity, aligning with how Article 12 of the CRPD has been interpreted.[13]

Regarding the scope of legal acts that may be carried out using supports, Article 445 of the CNPCF states that supports may be used for any legal act, including those that require the personal intervention of the individual, known as strictly personal acts. However, this must be regulated under state civil law as voluntary support designations. This represents a significant distinction from the extraordinary support designation regulated in the CNPCF, as extraordinary supports do not extend to strictly personal acts-such as drafting a will, which we will examine next.

IV. The Impossibility of Determining Will and Preferences

As mentioned earlier, the use of support for the exercise of legal capacity is an optional right for the rights holder. For this reason, the CNPCF refers to federal or state civil law for the regulation of supports. In practice, exercising legal capacity does not require a judicial procedure; rather, individuals rely on everyday interactions and available legal instruments, such as entering into contracts, granting powers of attorney, or carrying out other civil acts. At the international level, recommendations regarding the regulation of supported decision-making emphasize that the lives of individuals-particularly people with disabilities-should not be over regulated. Therefore, the way in which people with disabilities and older people exercise their legal capacity should not be subject to restrictive conditions, such as requiring prior authorization from judicial authorities or third parties.

However, there are situations in which it is impossible to determine an individual's will and preferences, even through alternative forms of communication (such as sign language, pictograms, simplified language, or technological applications) or through the implementation of reasonable accommodations.[14]

Various scenarios may give rise to this issue. For example, a person may be in a coma, or despite genuine, considerable, and appropriate efforts, it may remain impossible to ascertain their will and preferences-even through multiple accessibility measures. [15]

In some cases, preventive measures may have been taken for the designation of supports, such as an advance directive contract or a voluntary support designation, in which case the previously expressed will of the person should be followed. If no such measures exist, then the possibility of judicially designating extraordinary supports may arise. The conditions for this procedure, as well as its scope, will be examined in the next section.

V. The Risk of Rights Violations

The inability of a person to communicate their will and preferences by any means does not automatically justify the designation of extraordinary supports. The first requirement established by Article 446 of the CNPCF is that the designation of supports must be necessary for the exercise and protection of the rights of the person whose will cannot yet be determined. This means that there must be a situation requiring a specific decision to safeguard the individual's rights-for instance, a risk of asset loss or the need for a medical procedure to protect their health.

The judicial designation of this type of support always pertains to specific situations in which the protection of rights is at stake. The person appointed as a judicially designated support will only have the authorizations explicitly granted by the judicial authority. This is not a broad mandate to make decisions on behalf of the individual but rather a limited authority confined to the specific acts authorized by the court.

VI. Competent Authorities and Applicable Procedure

The extraordinary designation of supports falls under voluntary jurisdiction. According to Article 424 of the CNPCF, this procedure requires judicial intervention but does not involve a contentious dispute between specific parties. The entire procedure is guided by a principle derived from international human rights law, now formalized in procedural legislation: the best possible interpretation of the will and preferences of the person whose express intentions cannot be determined.[16]

For this reason, although various individuals may participate in the extraordinary support designation process and present evidence, it is not a dispute between opposing parties. Instead, its ultimate goal is to appoint the most suitable person to interpret, as accurately as possible and under specific conditions (which will be discussed shortly), the will and preferences of the person for whom the measure is being established.

The competent judicial authority for the extraordinary designation of supports will be the civil or family court, depending on the nature of the act in question. The process involves a summary oral hearing conducted in accordance with the CNPCF's procedural regulations. This means that the hearing follows the same principles governing oral proceedings, including immediacy, concentration, and procedural efficiency. Additionally, the same rules apply regarding the presentation of evidence and the examination of witnesses and other participants.

VII. Legitimized Parties to Initiate the Extraordinary Support Designation Procedure

According to Article 448 of the CNPCF, any person may request the judicial designation of extraordinary supports for the exercise of legal capacity. The petitioner must meet certain requirements, which will be discussed in the next section. However, it is important to note that the law grants standing to any individual precisely to address situations where a person may not have a close family or social circle to provide the necessary supports.

For this reason, and to ensure the highest level of protection, the range of individuals authorized to initiate the procedure has been expanded.

VIII. Conditions for Admissibility

To determine whether the extraordinary designation of supports is appropriate, the petitioner must provide information regarding:

• The impossibility of determining the person's will and preferences through any means of communication (Article 448, Section I, CNPCF).
• The existence of a risk to the protection of the person's rights, assets, personal integrity, or life, as applicable (Article 448, Section II, CNPCF).
• The demonstration of real, considerable, and relevant efforts-including the implementation of reasonable accommodations-to enable the person to express their will, which have ultimately proven ineffective (Article 448, Section III, CNPCF).

While the CNPCF places this burden on the petitioner, it also requires the judicial authority to gather all necessary information for this purpose. Since judicial authorities preside over and direct all proceedings, they are empowered to summon individuals who may have relevant information and to undertake any necessary actions to ensure the procedure fulfills its intended purpose.

Additionally, there is an explicit prohibition against appointing an extraordinary support person if they have a conflict of interest with the individual to be supported (Article 454, CNPCF). In assessing conflicts of interest, a familial relationship between the designated support person and the supported individual is not, in itself, sufficient to establish a conflict. Rather, the conflict must arise from a professional, personal, familial, business, or employment situation that could actually compromise impartial and objective decision-making in the execution of the support functions (Article 455, CNPCF).

IX. The Standard of the Best Possible Interpretation of Will and Preferences

The guiding principle throughout the entire procedure for the extraordinary designation of supports is the best possible interpretation of the person's will and preferences.[17] This standard derives from the principles governing legal capacity in various international human rights instruments, notably the International Covenant on Civil and Political Rights (1966) and the Convention on the Elimination of All Forms of Discrimination Against Women. However, it is most explicitly grounded in the principles of the Convention on the Rights of Persons with Disabilities (CRPD).

Historically, people with disabilities-particularly those with intellectual, developmental, or other disabilities entailing cognitive impairments-have often been deemed incapable of making decisions for themselves. Instead, others have made decisions on their behalf based on what is perceived as their best interest. This best interest principle, which is applicable to children, has frequently been extended to other groups, such as people with disabilities and older people. However, a systematic reading of the values and principles underpinning international human rights law makes it clear that individuals must have control over their own lives, including over their support systems.[18]

For this reason, the prima facie rule is that individuals should express their own will and preferences. When this is not possible, even after repeated attempts, decision-making must be guided by the best possible interpretation of their will and preferences.

All actors involved in the process-including those designated as supports, judicial and administrative authorities, and other participants-must be oriented toward this objective. This requires consulting various sources of information, such as the person's life history, values, traditions, beliefs, and previous expressions of will in different contexts, to ascertain their likely will and preferences (Article 450, CNPCF).

X. Acts for Which Extraordinary Supports May Be Designated

Unlike situations where a person can designate their own supports-meaning cases where they are able to express their will and preferences-the extraordinary designation of supports cannot apply to strictly personal acts. These are acts that require the direct intervention of the individual, such as entering into or dissolving a marriage or executing a will (Article 449, CNPCF). In such cases, the extraordinary designation of supports is not permitted.

Extraordinary supports may only be designated for acts related to the preservation of the person's assets or health. However, they cannot be used to create new legal situations about which nothing is known, such as certain acts in civil life that require the explicit will of the individual.

XI. Criteria for Designating the Support Person

The judicial authority must appoint the most suitable person based on any prior expressions of will and preferences made by the individual. If no such expressions exist, the designation must take into account factors such as cohabitation, trust, friendship, caregiving relationships, or kinship between the person to be supported and the potential support provider. To ensure an informed decision, the court must also hear from the public prosecutor or the administrative authority designated by the relevant state legislation (Article 447, CNPCF).

A fundamental condition for the extraordinary designation of support is that the designated person must accept the role. If no individual is willing to assume this responsibility voluntarily, the court must turn to organizations that provide this service (Article 447, CNPCF). This is a matter that each state must further develop in its legislation, effectively replacing the former Guardianship Councils. Given that the regulation of legal capacity falls under state jurisdiction, this aspect still requires detailed development at the state level.

XII. Content of the Judicial Designation of Extraordinary Supports

As with any judicial decision, the ruling on a request for the extraordinary designation of supports must be duly substantiated and justified. It must clearly specify:

• The responsibilities of the designated support person
• The duration of the designation
• The scope of their role
• The safeguards in place to prevent abuse
• Any reporting requirements to the competent authority (Article 449, CNPCF)

As previously mentioned, the designation is not for general acts but for specific acts for which the support is appointed. This also affects the duration of the designation. Some cases may involve a single act that occurs at one moment in time, while others may require ongoing support, which will determine the length of the designation.

Regarding safeguards, the judicial authority may establish measures to ensure that the designated support person fulfills their responsibilities appropriately. For example, the court may appoint a supervisory person responsible for monitoring the actions of the extraordinary support provider and reporting to the designated administrative authority or the court itself.

Additionally, as a general safeguard, the judicial authority must hold periodic hearings to review the actions of the designated support person and to verify whether it is still impossible to determine the will and preferences of the individual receiving support (Article 451, CNPCF).

XIII. Ongoing Obligation to Seek Communication of the Person's Preferences

As demonstrated throughout this analysis, the guiding principle of the extraordinary support designation system is the will and preferences of the individual. Therefore, all parties involved-especially the designated support person and the judicial authority-have a continuous obligation to assess whether the conditions that initially justified the extraordinary designation still exist.

This obligation requires an ongoing effort to determine whether it is now possible to ascertain the person's will and preferences directly, through alternative communication methods, reasonable accommodations, or real and meaningful efforts to facilitate their expression (Articles 450 and 451, CNPCF).

XIV. Conclusion of the Extraordinary Support Designation

The extraordinary designation of supports will conclude in the following circumstances:

• Upon the expiration of the specific period established by the court, if no extension has been granted.
• Once the designated act has been fully completed and no further review or follow-up is required, in accordance with the judicial resolution that authorized the extraordinary support.

Additionally, the designation must end if the individual for whom the support was designated begins to express their will and preferences (Article 451, CNPCF).

In such cases, the person may choose to ratify the previously designated support provider. However, this must be done through a contract with the designated individual, in accordance with the relevant civil code. Alternatively, the person may make an explicit designation before an administrative or judicial authority, depending on the nature of the acts requiring support and the competence of those authorities.[19]

XV. Authorization to Provide Information on Support Functions

To protect the will and preferences of the supported individual from potential interferences that do not align with the judicially conferred mandate, the CNPCF (Article 452) grants any person with relevant information about how the designated support person is carrying out their role the right to report this information to the judicial authority overseeing the case through a specific interlocutory proceeding.

The judicial authority is obligated to review the information presented and take appropriate action based on its findings. The court's decision may result in:

• Dismissing the information if it is deemed inadmissible.
• Implementing corrective measures to safeguard the rights of the supported individual.
• Revoking the designation of the support person if necessary.

This provision ensures accountability in the execution of support functions and reinforces the protection of the rights of the supported individual.

XVI. Conclusions

The new national procedural framework fully complies with the standards established by international human rights law, which is binding in Mexico. However, the reform enacted by the Congress of the Union must be complemented by state legislatures to completely eliminate the legal incapacitation of people based on disability or cognitive limitations due to age. Any restriction on a person's legal capacity conflicts with the international agreements ratified by Mexico.

The Federal Congress has completely repealed the guardianship system. However, beyond guardianship, other legal institutions that restrict legal capacity remain in place and must also be eliminated. These institutions have already been subject to constitutional scrutiny by the First Chamber of the Supreme Court of Justice of the Nation (SCJN). In the case of guardianship, the First Chamber's ruling is binding on all lower courts, except for the SCJN en banc. However, other decisions from the First Chamber, while not yet binding, strongly indicate the inadmissibility of certain legal mechanisms within the national legal framework and highlight the need for further review of their scope.

One such issue is notarial legislation, which still permits legal incapacitation. Currently, notaries have the authority to assess an individual's legal capacity and declare them legally incapacitated. These powers are incompatible with the full recognition of legal capacity for all people, as established by international human rights law.

For this reason, a comprehensive review of state-level civil and notarial legislation is necessary to ensure full compliance with international human rights obligations and to eliminate any remaining barriers to legal capacity.