The Flag of Imagination: Peru's New Reform on Legal Capacity for Persons with Intellectual and Psychosocial Disabilities and the Need for New Understandings in Private Law

Abstract

This paper analyzes the recent reform regarding the legal capacity of persons with disabilities in Peru. It provides a domestic legal and judicial context in which the reform was adopted. Following this, the paper aims to analyze the reform’s conformity with article 12 of the Convention on the rights of persons with disabilities, noting that the current regulation is only partially CRPD compliant. The current design of judicially designated supporters can be understood as valid under specific interpretations of Article 12, while the design of safeguards does not comply with such standard. The paper addresses the impact of legal capacity reform in traditional private law theory of the juridical act. Currently, the Peruvian system does not provide clear or accurate standards to respond to this problem. The paper shines a light on the need to rethink multiple concepts of private law in order to make legal capacity reform fully operational.

A Four-Speed Reform: A Typology for Legal Capacity Reforms in Latin American Countries

“…Therefore, the literature of those countries did not have in mind problems that the civil law systems needed to anticipate for a reform. For example, the civil law systems needed to determine how to understand vices of will (a general abstract concept) without relating it to disability (Constantino Caycho 2020). This is not a problem in the common law systems, since they can solve those problems in a case-by-case basis.…”