스페인의 지원의사결정제도는 유엔장애인권리협약에 부합하는가?

Abstract

This study analyzes whether Spain's new law on supported decision- making reflects the requirements of the Convention on the Rights of Persons with Disabilities. To this end, five key attributes of the supported decision-making system are derived as an analytical framework. The results of the analysis are as follows. First, Spain's new law formally abolishes alternative decision-making systems, but in practice, alternative decision- making is still used. Second, in the supported decision-making system, the system of assessing the level of decision-making ability still remains. Third, various support methods are presented, such as ‘informal support measures’ by relatives, ‘voluntary measures’ that allow the appointment of a representer through a continuing powers of attorney and support agreement, and ‘court ordered support measures’ in which the court appoints an representer by judgment. Fourth, the safety measures to protect persons with disabilities in the support relationship are inadequate. Fifth, the system especially includes property and finance area. Accordingly, suggestions were made to improve the Spanish supported decision-making system, such as a clear disconnection from the substitute decision-making system, respect for the will and preferences of the person with disabilities rather than judgment on decision-making capacity when selecting decision-making support, and establishment of safety measures to protect from risks, such as respecting the principle of best interpretation.