Support Agreements and Advance Directives: Colombia's New Framework Replacing Guardianship for Disability


Note: this article was originally published in 2020 and is kept here as a historical reference on the entry into force of Law 1996 of 2019.

The United Nations Convention on the Rights of Persons with Disabilities commits States to ensuring and promoting the full exercise of all human rights and fundamental freedoms of persons with disabilities, implementing principles that guarantee they are not discriminated against.

In Colombia, Law 1996 of 2019 set out specific measures to guarantee the right to full legal capacity for adults with disabilities, and access to whatever support they may need to exercise it. Article 3 states that formal support mechanisms facilitate and safeguard the decision-making process, or the recognition of a will expressed in advance by the person to whom a legal act applies.

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Law 1996 of 2019, "which establishes the framework for the exercise of legal capacity by adults with disabilities," eliminated guardianship (interdicción). That means that, once the law was enacted, no court proceeding can be started to have someone declared under guardianship, nor can that status be required to carry out public or private transactions. The law starts from the premise that people with disabilities can make their own decisions, express their will and preferences, and take on and fulfill obligations autonomously, using support if they need it.

What was guardianship? Guardianship completely stripped a person's legal capacity through a court declaration. As a result, a person under guardianship couldn't make decisions that mattered for their life (signing contracts, holding a bank account, getting married, medical procedures, among others), and a third party took over their life decisions entirely.

What about people who already have a guardianship ruling? Family court judges must, on their own initiative, summon people with a guardianship ruling, as well as those appointed as their guardians or advisors, to appear in court to determine whether they need court-appointed support. This must happen within 36 months of the entry into force of the support-appointment process set out in the law.

Within that same period, people under guardianship or incapacity measures can request a review of their legal status directly before the family judge who handled the original guardianship or incapacity proceeding. Once the request is received, the judge will summon the person under guardianship or incapacity, along with the people appointed as their guardians or advisors, to appear in court and determine whether they need court-appointed support.

So, how can a person with a disability exercise their right to have their decisions respected when entering into legal transactions? Through what are known as SUPPORT AGREEMENTS AND ADVANCE DIRECTIVES.

Support Agreements. These are made between the person with a disability and the individual(s) or organization(s) who will assist them in making decisions about one or more specific legal transactions, and can be signed before Conciliation Centers or Notaries. A support agreement cannot last longer than five years; once that period ends, one of the procedures set out in the law must be repeated to establish new support.

Before signing the agreement, both the Notary and the Conciliator must interview the person privately and confirm that signing the support agreement is truly their wish. A person with a disability can end a support agreement at any time, and can also modify it by mutual agreement between the parties.

Advance Directives: This is a type of formal support through which an adult can make advance decisions about health, financial, or personal matters, among others. For example, a person can decide in advance that, in a crisis, they should be given one medication and not another, or that in an emergency a friend should be called instead of their mother or father, or that they should not receive blood transfusions, etc. These directives can be signed before Conciliation Centers or Notaries.

The people who take on the duty of carrying out the advance will are the support persons. Advance directive statements can be expressed through any form of communication, including video or audio recordings and other technological means, as well as alternative communication methods, as long as both the content of the statement and its authorship can be clearly established.

Both Support Agreements and Advance Directives must be made in writing, either before a Notary (as a public deed) or at a Conciliation Center (as a conciliation record).

SOURCE: Law 1996 of 2019 and the Disability Handbook.

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