Guardianship of Adults
by Anne Röthel
1. Point and purpose; terminology
The term guardianship of adults refers to legal proceedings for the protection for adults who lack capacity in relation to their personal welfare, property and affairs.
Guardianship of adults is similar to guardianship of minors in that it enables adults lacking capacity to participate in legal and commercial relations while protecting their best interests. Under certain circumstances, legal rights and possessions are transferred from the ward to the guardian.
In most European legal systems guardianship of adults has developed on the basis of legislation applying to guardianship of minors. The original model of continental European guardianship (for adults) had been associated with an entire revocation of legal capacity by way of a sovereign act. This complete incapacitation of adults gradually became incompatible with modern ideas of personality and human dignity. As a consequence, in recent times one can observe a general tendency towards acknowledging a person’s lack of capacity only in relation to particular matters.
Accordingly, none of the new legal concepts for guardianship of adults which have recently been created and developed in several European states mandates all-embracing incapacitation. Examples here are the regulations of the British Mental Capacity Bill, the Austrian Sachwalterschaft (§§ 273 ff ABGB), the German Betreuung (§§ 1896 ff Bürgerliches Gesetzbuch (BGB)), the Dutch bewind and mentorschap (Arts 1:431 ff, Arts 1:450 ff Burgerlijk Wetboek (BW)) and the Italian amministrazione di sostegno (Arts 404 ff Codice civile). In other states where no new legislation was enacted, less invasive and more flexible legal concepts of adult guardianship have become more common. This can be seen in France where instances of the application of sauvegarde de justice (since 1 January 2009: Arts 433 ff Code civil) have increased in number and in Belgium where the administration provisoire (Art 488bis Code civil) is to be noted. There is thus a general pan-European tendency to avoid blanket incapacitation of adults in favour of graded measures based on the principles of subsidiarity und commensurability.
2. Tendencies in legal development
Guardianship of adults is an aspect of family law which is presently undergoing substantial changes. Apart from structural dissociation from the law relating to guardianship of minors (see 1. above), a second pan-European trend may also be observed: in many Member States, greater importance is being attributed to various forms of anticipated private arrangements for the case of a subsequent loss of competence and an ensuing need of assistance. Prima facie, this partial privatization of welfare has an alleviating effect on the public offices and courts which were originally responsible for all questions considering the guardianship of adults. It is, moreover, an aspect gaining in importance in light of the demographic and medical developments being experienced across Europe. Private arrangements and advance delegation of decision-making powers are also increasingly understood as allowing for an expression of human autonomy especially in instances where an individual is no longer in a position to exercise self-determination.
Early examples of these developments were the English lasting power of attorney (before 2005: enduring power of attorney) and the German Vorsorgevollmacht. Similar legal concepts have since become popular with the Austrian Sachwalterverfügung, the French mandat de protection future and the Spanish autotutela. Yet differences in the law with regard to the coverage of private arrangements make it difficult to provide a generalized description of these concepts. Questions of anticipated arrangements overlap with the difficult issue of the authority to decide on measures taken or forsaken at the end of life: different legal systems assess the coverage and relevance of so-called ‘living wills’ very unequally. Further discrepancies can be observed when considering the conditions precedent for the validity of these arrangements. In England and Wales, such wills have to be registered with the Public Guardian whereas Austria demands them to be certified by a notary, a lawyer or before court. In Germany, by contrast, a Vorsorgevollmacht can be drawn up without any formal requirements.
Disregarding these differences in detail, two major common trends can be noted as regards the development of guardianship for adults: on the one hand, personalization and, on the other hand, greater recognition of privately created provisions for cases of (partial) incapacity. Both aspects aim to enhance the self-determination of the adult ward, preserving legal capacity to the greatest possible extent while restricting public welfare measures to the minimum level necessary. This common tendency is also expressed by the guarantee of rights of the elderly in Art 25 of the Charter of Fundamental Rights of the European Union and in the governing principles formulated in Part II of Council of Europe Recommendation No R (99) 4 (Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults), particularly Principle 2 (flexibility in legal response), Principle 3 (maximum preservation of capacity), Principle 5 (necessity and subsidiarity) and Principle 6 (proportionality).
3. Uniform law
Aside from the above-mentioned principles of the Council of Europe (harmonization of private law), there is so far no uniform substantive law considering guardianship for adults. Regulations in respect of private international law and procedure, however, may certainly be applied. The Convention on the International Protection of Adults (CPA) is of particular importance here: concluded on 13 January 2000, this Convention entered into force on 18 December 2008 for Germany, the United Kingdom limited to Scotland, and France (see Art 57(1) CPA). It is particularly influenced by the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (CPC) (guardianship of minors). Article 2(1) CPA determines its subjective scope as distinguished from the CPC, referring only to persons who have reached the age of 18. Jurisdiction is assigned to the authorities and courts of the contracting state of habitual residence of the adult (Art 5(1) CPA). According to Art 13(1) CPA, the court that is competent to exercise jurisdiction is generally under a duty to apply the lex fori. Thus, the Convention follows the tendency of numerous Hague Conventions to enforce the law of habitual residence and constitutes a clear deviation from the still predominant number of European legal systems which, at least formally, refer to the lex domicilii when considering the protection of adults. Apart from the connecting factor, the Convention also contains conflict of laws rules in Arts 15 and 16.
The Convention refers to powers of representation which are to be exercised when an adult is no longer in a position to protect his or her own interests (Art 15(1) CPA). These powers of representation which are granted for situations of inability on grounds of law need to be distinguished from powers of representation which have an impact only in situations of temporary factual inability, as well as from powers of representation mortis causa. In the latter constellations the autonomous conflict rules of representation (representation (PIL)) and the Hague Convention on the law applicable to agency, concluded 14 March 1978 and entering into force 1 May 1992, are to be applied.
Considering the existence, extent, modification and extinction of the powers of representation, Art 15(1) CPA basically refers to the law designated by the adult (Art 15(1), (2) CPA). However, only the lex domicilii, the law of a state of former habitual residence and the law of a state in which property of the adult is located can be designated. The law of the state where the adult had his or her habitual residence at the time of the agreement or act is to be applied subsidiarily. To ensure legal certainty, the manner of exercise of such powers of representation is governed by the law of the state in which they are exercised (Art 15(3) CPA).
It remains doubtful whether the Brussels IIbis Regulation (guardianship of minors) can also be applied in the case of guardianship of adults. This question arises because the personal scope of the application of the Brussels IIbis Regulation (Reg 2201/2003) has not explicitly been limited to minors. Therefore, it has been suggested that Art 1(2)b Brussels IIbis also embraces the legal proceedings of adult protection as a corresponding legal institute. However, such a reading would be inconsistent with the systemic structure (parental responsibility) as well as the telos of Brussels IIbis and would also contradict the dissociation of adult protection from guardianship of minors which can be found in all European legal orders.
4. Future development in Europe
Similar to guardianship of minors, guardianship of adults is a field of law strongly influenced by public law and fundamental rights. It affects delicate issues of legal culture as concerns personality and the question of autonomy at the end of one’s life. This may explain why so far no uniform law has developed and no official plans to harmonize legal concepts in this area are to be noted. On the other hand, over the past 20 years a phenomenon has gained importance in Europe which can be described as spontaneous harmonization and which, in spite of national autonomy, has resulted in a common tendency to dissociate guardianship of adults from that of minors and to attach more importance to private arrangements. The fact that this spontaneous legal harmonization has turned out to be rather effective in this field of law allows for the conclusion that the issue of adult guardianship could appropriately be advanced by projects based on academic principles such as those adopted by the Commission on European Family Law (CEFL).
Aside from that, the idea of legal harmonization lends itself above all to questions concerning private arrangements. With such arrangements becoming increasing relevant to national regimes, a need for unambiguous legal coordination and harmonization is clearly evoked. A pan-European power of representation in the form of optional Union law by virtue of EU regulation might help to adjust different national conditions precedent for validity. However, it seems doubtful whether a common European register of advance directives would be approved as an ideal solution. Such a Europe-wide duty of registration would at a minimum lead to a serious loss of autonomy and flexibility in the protection of adults. In any case, it seems fitting that the progress and evaluation of other Europe-wide registration systems should first be awaited.
Jacqueline Pousson-Petit, ‘La protection personnelle des malades mentaux dans les principaux droits européens’ (1995) 3 ERPL 383; Paul Lagarde, ‘La convention de La Haye du 13 janvier 2000 sur la protection internationale des adultes’ (2000) 89 Rev crit dr int priv; Kurt Siehr, ‘Das Haager Übereinkommen über den internationalen Schutz Erwachsener’ (2000) 64 RabelsZ 715; Israel Doron, ‘Elder Guardianship Kaleidoscope—A Comparative Perspective’ (2002) 16 IJLPF 368; Anne Röthel, ‘Erwachsenenschutz in Europa: Von paternalistischer Bevormundung zu gestaltbarer Fürsorge’  Zeitschrift für das gesamte Familienrecht 999; Till Guttenberger, Das Haager Übereinkommen über den internationalen Schutz von Erwachsenen (2004); Nina Dethloff, ‘Familien- und Erbrecht zwischen nationaler Rechtskultur, Vergemeinschaftung und Internationalität’ (2007) 15 ZEuP 992; Anne Röthel, ‘Patientenverfügung und Vorsorgevollmacht in europäischer Perspektive’  Familie, Partnerschaft, Recht 79; Anne Röthel, ‘Private Vorsorge im internationalen Rechtsverkehr’ in Volker Lipp, Anne Röthel and Jürgen Spalckhaver, Handbuch der Privaten Vorsorge (2009).