Legal Capacity in the Civil Legal Lives of Persons with Dementia in Taiwan: Implications of the Convention on the Rights of Persons with Disabilities

As the number of persons with dementia increases around the world, dementia is becoming a major public mental health and economic issue. Law, which is just as much a part and parcel of culture, is an important sector for constructing an integrated institutional framework to respect the dignity of and offer care to persons with dementia. However, literature that systematically explores the legal lives of persons with dementia has been inadequate. This chapter initially attempts to delineate the approaches to legal capacity that separately emphasize personal status, behavior outcome, personal function and human rights as the main consideration for determining legal capacity. It covers institutions of disability certificate, long-term and short-term legal capacity for nonspecified events, and short-term legal capacity for health care events in Taiwan. Based on public surveys and court decision datasets in Taiwan, this chapter aims to demonstrate the ambivalence, complexity and difficulty for Taiwan to comply with the Convention on the Rights of Persons with Disabilities (CRPD). A hasty implementation of the CRPD’s ideal of legal capacity for all not only clashes with people’s cultural imaging of civil legal lives, but also may lead to violations of other human rights protected by the CRPD. Though the CRPD General Comment No. 1 opposes the use of mental capacity for determining legal capacity, it is still inevitable we use the concept of mental capacity to determine whether persons with dementia are able to communicate and express their will and preferences. For the time being, neuroscience is neither necessary nor sufficient for determining legal capacity in Taiwan. The chapter suggests that we could use the concept of wide reflective equilibrium to understand the evolution of legal capacity institution. With incremental enhancement of reasonable accommodation and support, the CRPD and neuroscience may shift the equilibrium point of legal capacity in the long run. But, a rush to adopt the ideal of legal capacity for all may hinder the protections of human rights to health and finance, among others.