JOURNAL OF THE NATIONAL HUMAN RIGHTS COMMISSION, INDIA VOL. 21, 2022 Since the Article recognises legal capacity, it frowns upon any arrangement, which displaces that capacity. However, procedures, social arrangements, which support persons with disabilities to exercise their legal capacity have been encouraged in the General Comment. In clarifying the obligations of state parties under the Article, the Treaty Body asks states to facilitate access to support measures, while clarifying that the choice to avail the support or not remains with persons with disabilities. The primacy accorded to the will of persons with disabilities can be discerned from the manner in which the Treaty Body has addressed the matter of advance directives. Paragraph 17 of the General Comment requires that persons with disabilities be given the opportunity to undertake advance planning on an equal basis with others. But the opportunity should, in no way, compromise the agency of persons with disabilities, so “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 assessment that the person lacks legal capacity.” This aspect of the General Comment would need to be revisited when the MHCA provisions on legal capacity are examined later in the article. After placing the obligation of providing access to support on the state parties, paragraph (4) of Article 12 turns to look at safeguards and, here, the greatest emphasis is placed on respecting the will and preference of persons with disabilities. The Treaty Body seeks to replace best interests with the ‘best interpretation of will and preference’. Even as the Treaty Body recognises the fact of undue influence and admits that safeguards for the exercise of legal capacity must include protection against undue influence, it also cautions that “the protection must respect the rights, will and preferences of the person, including the right to take risks and make mistakes.”12 Even as paragraph (2) of Article 12 recognises that persons with disabilities enjoy legal capacity in all aspects of life, the incorporation of Paragraph (5) of Article 12 is to expressly recognise the legal capacity of persons with disabilities in an area where they face maximum exclusion. The paragraph requires state parties to take all effective and appropriate measures “to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms 12 34 Id para 22.