Legal capacity is one basic condition of legal acting. It encompasses legal standing and legal agency. The term legal capacity offers a broad meaning and impacts in all aspects of life. Legal participation is an elementary need for an inclusive society.
The current research deals with legal capacity in the sense of legal agency in chosen legal areas, e.g. legal transactions and medical treatment. The research paper provides a legal comparison between the adult guardianship laws of the countries Austria, Germany and Australia (New South Wales). This research is in process in the context of to take a doctoral degree.
At the beginning the paper gives a description of the status quo of the structure of the legal capacity systems and the current adult guardianship laws in the comparative countries. The legal capacity to contract and the capacity to give consent to medical treatment are described in more detail.
Legal capacity, as a legal concept or a legal construction, must be distinguished from the mental capacity as a basic human capacity. Both, legal and mental capacities are no easy subjects to identify. The paper takes a brief look at the term capacity, in a legal context, and the persons, who assess the existence or the absence of legal capacity.
Further the paper provides insights on how a person, who is meant not to be able to legally participate, nevertheless might take part in legally relevant decisions, while taking into account a persons wishes and the decision making abilities.
The research paper closes with a review of the compatibility of the national adult guardianship laws and the prerequisites of the Convention on the Rights of Persons with Disabilities.