Legal amendments passed last month bring change to Lithuania's regulations on incapacity, allowing persons with mental or intellectual disabilities to have the rights of limited capacity in some fields.

A strong impetus for reform came about after the European Court of Human Rights decision in the case of D.D. v Lithuania (2012), where the applicant was represented by the Human Rights Monitoring Institute.

The court criticized Lithuania for the fact that D.D. wasn't given the opportunity to participate in court proceedings regarding her legal capacity and was not informed on the consideration of the case related with her involuntary institutionalization (violations of Articles 5 and 6 of the European Convention on Human Rights).

New legal safeguards to aid in protecting the rights of the disabled:

• Under the old regulations, limited capacity could only be established in cases where individuals were abusing alcohol, drugs or toxic substances. The new regime will allow for limited capacity in specific fields for persons that have mental or intellectual disabilities.
• When a person's capacity is limited in a specific field, they are placed under care, with the carer acting in concert with them, i.e. helping them exercise their rights in that particular field and giving consent to enter into agreements. Outside of those prescribed fields, persons with limited capacity will be able to act on their own.
• The amendments also provide for an annual review of a person's incapacity, to be carried out by the newly formed Commission for Reviewing the Status of a Person Without Capacity.
• The new regulations allow parties to enter into an agreement for the provision of support in decision making. Such agreements are considered to be a progressive way for persons with disabilities to enjoy their rights, as they leave the final decision to the persons themselves instead of letting others make decisions for them.
• The new amendments also establish the possibility of giving instructions prior to becoming incapacitated (the so-called "living will"). This will allow the person to appoint his guardian or carer, leave instructions on matters of property and indicate what treatment he consents to in the potential event of his capacity becoming limited.

UNCRPD member: the status incapacity violates the UN Convention

The amendments abolish the possibility, which was still alive and kicking in Lithuania, to declare a person incapable in all walks of life; this failed to differentiate people and transformed them into "legal objects" and "social nobodies." However, the Seimas (Parliament) left open the possibility of declaring a person incapable of acting "in a particular field" and leaving the decision making in that field wholly up to his guardian.

Jonas Ruškus, who is a member of the UN Committee on the Rights of Persons with Disabilities, congratulated Lithuania for opting to not define incapacity in absolute terms, which is a particularly discriminatory practice, when preparing and adopting the aforementioned amendments.

"On the other hand," Ruškus said, "the United Nations Committee on the Rights of Persons with Disabilities has said that intellectual, mental or other disorders are no grounds for limiting a person's capacity in one way or the other—all are equal before the law and all people without exception have an inherent right to live in society with dignity. As such, it is lamentable that today we haven't acted with courage and completely abolished incapacity. I believe that we will do so soon; I believe that one day human rights will cease to be just an abstract concept in Lithuania and will become the real foundation of our democratic society."