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Equal recognition before the law (art. 12)
25. The Committee is concerned that the legal instrument of guardianship (“rechtliche Betreuung”), as outlined in and governed by the German Civil Code (BGB) is incompatible with the Convention.
26. The Committee recommends that the State party:
(a) Eliminate all forms of substituted decision-making and replace them with a system of supported decision-making, in view of the Committee’s General Comment No. 1 (2014);
(b) Develop professional quality standards for supported decision-making mechanisms;
(c) In close cooperation with persons with disabilities, provide training on article 12 of the Convention in line with Committee’s General Comment No. 1 at the federal, regional and local levels for all actors, including civil servants, judges, social workers, health and social services professionals, and the wider community.

17. Support in the exercise of legal capacity must respect the rights, will and preferences
of persons with disabilities and should never amount to substitute decision-making. Article
12, paragraph 3, does not specify what form the support should take. “Support” is a broad
term that encompasses both informal and formal support arrangements, of varying types
and intensity. For example, persons with disabilities may choose one or more trusted
support persons to assist them in exercising their legal capacity for certain types of
decisions, or may call on other forms of support, such as peer support, advocacy (including
self-advocacy support), or assistance with communication. Support to persons with
disabilities in the exercise of their legal capacity might include measures relating to
universal design and accessibility — for example, requiring private and public actors, such
as banks and financial institutions, to provide information in an understandable format or to
provide professional sign language interpretation — in order to enable persons with
disabilities to perform the legal acts required to open a bank account, conclude contracts or
conduct other social transactions. Support can also constitute the development and
recognition of diverse, non-conventional methods of communication, especially for those
who use non-verbal forms of communication to express their will and preferences. For
many persons with disabilities, the ability to plan in advance is an important form of
support, whereby they can state their will and preferences which should be followed at a
time when they may not be in a position to communicate their wishes to others. All persons
with disabilities have the right to engage in advance planning and should be given the
opportunity to do so on an equal basis with others. States parties can provide various forms
of advance planning mechanisms to accommodate various preferences, but all the options
should be non-discriminatory. Support should be provided to a person, where desired, to
complete an advance planning process. The point at which an advance directive enters into
force (and ceases to have effect) should be decided by the person and included in the text of
the directive; it should not be based on an assessment that the person lacks mental capacity.

18. The type and intensity of support to be provided will vary significantly from one
person to another owing to the diversity of persons with disabilities. This is in accordance
with article 3 (d), which sets out “respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity” as a general principle of the
Convention. At all times, including in crisis situations, the individual autonomy and
capacity of persons with disabilities to make decisions must be respected.

19. Some persons with disabilities only seek recognition of their right to legal capacity
on an equal basis with others, as provided for in article 12, paragraph 2, of the Convention,
and may not wish to exercise their right to support, as provided for in article 12,
paragraph 3.