Is there a right not to receive the support in the exercise of the legal capacity?

Abstract

The article raises the question of whether a broad interpretation of the «respect for the will and preferences» of the person with a disability as proclaimed by the United Nations Convention, protects, as part of the right to support, the right - which, if so, the system should respect - not to receive support or to disregard its content. This possibility, which could have different bases that are compatible with each other, must be analysed in the theoretical order, but also and above all, in the text of the preliminary draft reform of the Civil Code in the field of disability. It is analysed whether the person can refuse ex ante to receive support or if, on the contrary, the authorities can impose it on him, and also, if already having the support, he can dispense with the content - or openly oppose - that which is transmitted to him with the support, which could have different consequences, depending on whether he is just a support facilitator or a curator (option of the Spanish pre-legislator). The significance of the issue goes far beyond one specific point in the planned reform of our private legal system, as it affects the configuration of the curatorship (the central figure in that system) and forces us to consider whether it can really dispense completely with the principle of the best interests of the person with a disability.