Law No. 6/2004 introduced in Italy the institution of support administration (amministrazione di sostegno), conceived as a more flexible and appropriate protection mechanism compared to interdiction and incapacitation, which entail the total or partial loss of an individual’s legal capacity. Although this measure was designed to promote autonomy and participation, its practical application has not always achieved the expected outcomes. In some cases, it has led to forms of substitution of the person’s will rather than genuine support, revealing a persistent cultural resistance¹ to the paradigm shift advocated by contemporary human rights frameworks.

A substantial transformation is therefore needed, starting from the cultural and educational dimensions, to promote a deeper understanding of the new paradigm introduced by the United Nations Convention on the Rights of Persons with Disabilities (CRPD). 

Article 12² of the Convention explicitly prohibits the substitution of a person’s will, affirming instead the presumption of capacity and the obligation to provide the necessary support to ensure the effective exercise of legal capacity. 

The article establishes the principle of Universal Legal Capacity, recognising persons with disabilities as equal before the law³. Disability, therefore, can never constitute a legitimate reason for discrimination—neither in terms of legal recognition nor in the exercise of rights. Any possible limitation must be strictly justified and assessed on a case-by-case basis.

The third paragraph⁴ of the article 12 also emphasises the importance of support in decision-making processes, promoting the idea that, if adequate facilitation systems were in place, individuals would be able to exercise greater autonomy in their choices. Nonetheless, cultural prejudices often persist, suggesting that persons with disabilities are inherently incapable of making independent decisions⁵. 

Overcoming such assumptions is one of the central challenges in realising the full spirit of the Convention.

Within this framework, the role of the support administrator (ADS) becomes pivotal. The ADS acts as a facilitator and companion in the decision-making process, fostering the empowerment of the person with disabilities and valuing their capabilities rather than focusing on limitations. The paradigm shift introduced by the CRPD redefines this role: the ADS should support without replacing, listen without imposing, and mediate without dominating⁶. 

A perceived or real deficit cannot justify ignoring the beneficiary’s will; rather, it must be acknowledged and respected as part of the person’s identity and agency.

It is essential to recognise that individuals with intellectual, psychosocial or cognitive disabilities possess decision-making abilities that can be expressed with appropriate support. Assistance in exercising legal capacity may be necessary, but it must never be assumed as a given. The aim should always be to enable the person to act, decide, and participate as autonomously as possible.

Despite the normative advancements, several critical issues remain⁷. 

Support administrators are often responsible for numerous cases simultaneously, which can lead to insufficient attention and inadequate care for beneficiaries⁸. 

Another recurring challenge concerns the respect of the beneficiary’s will, particularly when the expressed wishes appear to conflict with their perceived well-being or best interests. However, the right to make mistakes is intrinsic to human dignity. The ability of the ADS to listen, interpret, and mediate becomes crucial in these situations, as it determines the extent to which the principle of self-determination is genuinely upheld.

To address these difficulties, it would be advisable for support administrators not to operate in isolation but within a collaborative framework, possibly with the involvement of a co-administrator or a supervisory figure to monitor the process and ensure that the beneficiary’s voice remains central⁹. Given the high level of vulnerability that many persons with disabilities experience, creating such systems of shared responsibility could reinforce both protection and autonomy.

Ultimately, support administration should place the person and their will at the centre of the process. Too often, however, this institution risks degenerating into a mechanism of substitution, diverging from its original purpose. The ADS was conceived as a tool for empowerment, intended to accompany rather than replace the individual in decision-making. The cultural and normative contributions of the UN Convention thus remain profoundly relevant today, as they continue to inspire the transition from a logic of protection to one of recognition, participation, and autonomy.

¹ Indeed, according to Bernardini, “the problem is primarily a cultural one: the ‘incapacitating’ vision, still rooted in the medical–individual model of disability, remains widespread.” La visione “incapacitante” nell’applicazione dell’amministrazione di sostegno, Superando.it

² “[...] States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.” United Nations Convention on the Rights of Persons with Disabilities, p. 16 https://pninclusione21-27.lavoro.gov.it/sites/default/files/2023-10/Convenzione%20ONU.pdf 

³ “[...] States Parties shall take appropriate measures to provide persons with disabilities with the support they may require to exercise their legal capacity.” Ibid.

⁴ ibid.

⁵ “The entire support system needs to be reconsidered,” he concludes, “and from this perspective, it is understandable that such change may be frightening (and therefore provoke resistance). Clearly, however, fear cannot be a valid reason for failing to restore to persons with disabilities the rights that have hitherto been denied to them.”  La visione “incapacitante” nell’applicazione dell’amministrazione di sostegno, Superando.it

⁶ “4. States Parties shall ensure that all measures relating to the exercise of legal capacity provide adequate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards must ensure that measures relating to the exercise of legal capacity respect the rights, will, and preferences of the person; are free from any conflict of interest and undue influence; are proportionate and appropriate to the person’s circumstances; are applied for the shortest time possible; and are subject to periodic review by a competent, independent, and impartial authority or judicial body. These safeguards shall be proportionate to the degree to which such measures affect the rights and interests of the person.” United Nations Convention on the Rights of Persons with Disabilities, pp. 16–17  https://pninclusione21-27.lavoro.gov.it/sites/default/files/2023-10/Convenzione%20ONU.pdf

 ⁷ “[...] cases in which support administration operates can be divided into three groups: one third of cases in which things go well, one third in which they are so-so, and one third in which they go badly. Now, given that approximately 400,000 people are currently under support administration, this means that over 100,000 people experience poor outcomes, and an equal number experience so-so outcomes.”  Amministrazione di sostegno: come evitare che le cose vadano “così e cosi” o decisamente male?, Superando.it  

⁸ “Thus, he appropriately addressed the problem of too many appointments being assigned to the same administrator, which results in care of beneficiaries being of poor or negative quality. Consequently, given the shortage of available personnel, the complexity, the psychological burden, and the time commitment required of those who accept the role, he proposes recourse to volunteering. Nevertheless, I repeat, regarding the cases that ‘go so-so’ and especially those that go badly, I hope that he will subsequently provide suggestions that are not only useful but necessary.” Ibid.

⁹ “I wonder, for instance, whether it would be possible to appoint a ‘co-support administrator’, as the Civil Code already provides for the appointment of a ‘protector,’ who oversees the activities of the support administrator and monitors the effects produced not only, or primarily, on the beneficiary’s financial situation, but above all on their existential well-being. I am aware that here too the problem of the scarcity of available personnel already serving as support administrators arises; however, if the Code had no difficulty in incorporating the institution of the protector, it should not reject the introduction of the figure of a ‘co-support administrator.’” Ibid.