Abstract
For years, Common law and Civil Code have determined the legal age as majority which defines adulthood, giving a presumption of legal capacity to adults. At this age, all adults are presumed to be capable of making their own decisions, protecting their interests and exercising the rights they enjoy in the acts of their civil life. This legal presumption of capacity structures the life-course of adults and allows them to act and make decisions either in daily life or for exceptional civil acts, for instance, marriage. Domestic laws, including French laws, do provide for certain exceptions, especially for persons suffering from disease or disabilities. The use of substitutive decision-making, or “coercive legal” measures, is increasing. At the same time, these legal substitutive decision-making measures have encountered challenges. The cornerstone Article of International Convention on the Rights of Persons with Disabilities (CRPD) reaffirms the exigence of equal recognition of all persons before the law with equal capacity. The interpretation of this article 12 is subject to considerable controversy. The controversy around CRPD and the paradox between the normative evolution of fundamental rights and the increasing uses of legal substitutive decision-making measures in social practices raise questions about the place of this legal presumption of capacity. In this article, we wish to tackle this controversy by starting with situations where the daily capacity to exercise one’s rights becomes an issue for the professional or family circle. What happens when persons seem unable to understand the consequences of their actions or when they behave incomprehensibly according to their close ones? When should others around the person worry about the person’s ability to take care of oneself? What happens when a person’s ways of functioning change? Is it an indication that his or her state of health is experiencing changes? That the person’s needs have evolved? What does this imply for family and friends, especially in terms of actions or substitute decisions? Using the core notion of “capacity trajectory,” this article intends to empirically shed light on how rights and legal capacity are exercised in situations of vulnerability. We wish to demonstrate that the presumption of capacity requires certain “conditions of capacity” in practice.
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Notes
The reasons for this change are complex (Eyraud and Henckes 2013). Legal coercive and protective measures impact a variety of sectors of the population: persons with severe psychiatric disorders, elderly persons who have become highly dependent or suffer from Alzheimer’s disease, persons with severe disabilities and even persons who are excluded and have basically dropped out of society (Eyraud and Bascougnano 2013). The increased use of these measures is part of a general trend to change policies in the field of mental health (Ehrenberg 2001), in care provided to elderly persons with dependencies and in policies regarding the role families should play (Ballenger 2017), as well as social policies related both to persons with disabilities and those persons in extreme poverty.
Pertaining to this case, focusing on the context of dementia is not an incidental choice. Historically, in France, “age-related impairment” has been adequate justification for the implementation of prohibitions and imposing guardianship for the elderly. In recent decades, an increase in the number of people affected by Alzheimer's disease has also led to questions about protective measures and has undeniably involved movements to reform domestic rights relating to protective measures.
The fieldwork was carried out by the main author, and a first interpretation was conducted with Caroline Despres, particularly in order to draw a contrast with other shorter monographs. This story has previously been discussed in this context (Eyraud, Despres 2014). My thanks to Caroline Despres and Retraite et société journal for authorizing this new interpretation, and to Olivia Miyataki-Pellarin for the support in writing in english, the discussions on the interpretations, and the very sensible manner to translate the ethnographic narratives..
This question of having the legitimacy to intervene is particularly problematic when there is no previous experience assisting a family member at the time where the person is still in full possession of his or her faculties. On the opposite spectrum, other families have progressively provided support either well before the person has fallen ill or by establishing a formal support system rendering their intervention legitimate (power of attorney, for example), demonstrating the aspect of trust. For instance, a daughter may accompany her mother for cancer treatment, another daughter may be present during doctor’s appointments because her mother does not drive, or a son-in-law may take over the responsibility for filing taxes after the death of the father, etc.
The names used in this story are partly fictitious. The objective was more to help the protagonists put a distance between themselves and the events experienced rather than to anonymize their identity.
The story drafted was submitted to the main persons surveyed to read: the brother of Mme Savinet, Claude-Jean Brachet, and the four children of Mr. and Mrs Savinet: Ives, a computer engineer, born in 1955, Beth, a speech therapist born in 1957, Alan, a primary school teacher, born in 1958, and Chris, born in 1960. Two of them provided feedback after reading the paper. Three of them did not share their reactions with the author.
For this purpose, we have borrowed from the now familiar Corbin–Strauss “trajectory” model, not to shed light on the stages of a disease (Corbin and Strauss 1988), but rather, on the changing level of consideration given to a person’s capacities by the law.
Marriage carries a form of protection. In France, it legally mandates (Article 212 of the Civil Code) spouses to “support” and “assist” one another, to have access to information, to make decisions… Informal protection is often exercised by spouses to ensure a certain continuity of life before and after illness. In society, common law couples tend to marry after a diagnosis of Alzheimer's disease in anticipation of such issues of protection.
Several legal provisions exist. In France, the law of March 4, 2002 states that “any person of legal age may appoint a person of trust.” No family member had mentioned this provision, which mainly concerns medical procedures. The law of March 5, 2007, created a “mandate for future protection,” akin to formalizations in many other countries, of which some had existed since the 1980s. Mrs. Savinet’s brother, Claude-Jean, who resides in Quebec, had since established a mandate of this type, not wishing to make his family go through what he experienced with his father or sister by their reluctance to move to a retirement home.
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This study was funded by ANR—Agence Nationale de la recherche
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Benoît Eyraud has received research grants from Agence Nationale de la Recherche, a national public agency. I attested to the originality of the submission and guaranteed that it had not been submitted elsewhere. The corresponding author states that there was no conflict of interest.
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Eyraud, B. Capacity Trajectory in the Context of Dementia: A Case of Exercising Rights in Troubled Civil Life. Cult Med Psychiatry 46, 170–193 (2022). https://doi.org/10.1007/s11013-021-09710-z
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DOI: https://doi.org/10.1007/s11013-021-09710-z