Protection of Adults
by Kurt Siehr
1. National substantive law
The traditional rule under national law (still in effect in some jurisdictions) saw adults who could not protect their own interests, on account of either an impairment or insufficiency of their personal faculties, as incapacitated and placed under guardianship (§§ 268 ff ABGB: Sachwalter or Kuratel; §§ 1773 ff Bürgerliches Gesetzbuch (BGB) old version: Vormundschaft; Arts 488 ff Code civil: tutelle des majeurs; Arts 360 ff Swiss Civil Code: Vormundschaft; Arts 286 ff Spanish Código civil: curatela). These adults are declared incapacitated by courts or other authorities and an administrator (tuteur, tutore) is appointed to be responsible for acting in their place. Less intruding is a kind of curatorship (§§ 1909 ff BGB old version: Pflegschaft; Arts 392 ff Swiss Civil Code: curatelle), which was designed to assist helpless people through the aid of a curator (curateur, curatore). In modern times, the old rules have been by and large replaced by new rules on assistance (eg §§ 1896 BGB: Betreuung; Arts 404 ff Codice civile: amministrazione di sostegno; Arts 1: 431 ff Burgerlijk Wetboek (BW): onderbewindstelling ter bescherming van meerderjarigen). Also, Switzerland has revised its Civil Code and replaced the Vormundschaft with Erwachsenenschutz. These new rules are less rigid and do not require a declaration of incapacitation. They merely provide that certain important transactions are only valid if the assisting person agreed to them.
2. International uniform law
On the international level, there is no uniform law, neither on the European Union level nor on the level of the Council of Europe (Council of Europe (harmonization of private law)). The Council of Europe, however, passed a recommendation: No R(99)4 of 23 February 1999 on Principles Concerning Legal Protection of Incapable Adults. These principles are designed to assist national legislatures in their efforts in this field. The most important of these 28 principles can be summarized as follows. The interest and welfare of the person concerned should be the paramount consideration (Principle 8); therefore a maximum of capacity of the adult should be preserved (Principle 3); the measures of protection should be flexible (Principle 2) and should only be established if they are necessary, subsidiary and proportionate (Principles 5 and 6); thereby human rights of the adult should be respected (Principle 1) (human rights and fundamental rights (ChFR and ECHR)); consultations shall be held with those persons having a close interest in the welfare of the adult (Principle 10) and consent should be given in case of medical intervention (Principle 22). Measures of protection should be ordered by competent authorities and be reviewed by courts (Principles 11 ff) and should be given publicity if the interests of the adult are sufficiently afforded (Principle 4). Lastly, the administrator will be held responsible for any wrongful act he is liable for (Principle 20). These principles have already inspired legislatures in their work for revising national law on the protection of adults.
3. National PIL
Today there are still national conflicts rules on international guardianship (eg § 27 Austrian PIL Statute; Art 36 Belgian PIL Code; Art 24 EGBGB; § 48 Hungarian PIL Regulation; Art 30 Portuguese Código civil; Art 85(2) Swiss PIL Statute). According to these provisions, guardianship is governed by the personal law of the protected person, ie by the law of his nationality (eg Austria, Germany, Hungary, Portugal) or by the law of his domicile or habitual residence (eg Belgium, Switzerland).
4. Hague Conventions
One of the earliest Hague Conventions is the Hague Convention of 17 July 1905 Relating to Deprivation of Civil Rights and Similar Measures of Protection. This Convention was in force in nine countries and still is valid in Poland, Portugal and Romania. The other six countries (France, Germany, Hungary, Italy, the Netherlands and Sweden) have withdrawn from this Convention.
The 1905 Convention has been replaced by the Hague Convention of 13 January 2000 on the International Protection of Adults, which was drafted based on the model of 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 (child protection). According to the Convention of Protection of Adults, courts and authorities at the habitual residence of the adult have jurisdiction (Art 5) to take measures for protection according to the lex fori (Art 13), and these decisions have to be recognized and enforced in every contracting state (Arts 22 ff). Measures of protection encompass all measures for the protection of a person at the age of more than 18 years that are not found in the exclusive list of measures not covered by the Convention, eg maintenance, marriage and divorce, matrimonial property regimes, trusts, succession law (certificate of inheritance), social security, public measures of general nature in matters of health, criminal law, decisions on the right of asylum and on immigration, and measures to safeguard public safety.
a) The general head of jurisdiction of courts or authorities at the adult’s place of habitual residence (Art 5) is supplemented by a subsidiarily applicable head of jurisdiction of the state of which the adult is a national (Art 7), of the state in which property of the adult is located (Art 9) and by heads of jurisdiction for urgent and provisional measures (Arts 10 and 11). In addition, the courts at the adult’s habitual residence are permitted to ask the courts of other contracting states to take measures for the protection of the adult or his property (Art 8). Such requests may be directed to the courts of the adult’s national state, the state of location of property, the adult’s former habitual residence or his present simple residence, a state chosen by the adult and states in which certain persons closely connected with the adult have their habitual residence and are ready to assume the task of protecting the adult person (Art 8(2)).
b) The courts or authorities having jurisdiction apply their lex fori (Art 13(1)). In these instances, however, the court may apply or take into account foreign law if the adult is closely connected with the state of that law (Art 13(2)). A lasting power of appointment (authority of agents) for the case in the future when the adult is no longer able to protect himself is governed by the law of that state in which the adult habitually resides at the time when the power of attorney was given (Art 10(1)), but the adult can also choose the law of his nationality, the law of his former habitual residence or the law at the location of property (Art 10(2)).
c) The decisions rendered in one contracting state have to be recognized and enforced in all other contracting states (Art 22(1)). Recognition may, however, be refused under Art 22(2) if the foreign courts had no jurisdiction, if there was no fair hearing, if the decision violates the public policy of the recognizing state, if it is incompatible with a later measure of protection by a non-contracting state which is recognized by the recognizing state, or, if in matters of placement in an institution, the requirement for such a placement (under Art 33) have not been fulfilled. The recognizing court is bound by the facts stated by the foreign court (Art 24). There is no révision au fond (Art 26). If the foreign decision has to be executed, the procedure of execution has to be simple and rapid (Art 25), and execution can only be refused if there are certain fixed grounds of refusal (Arts 22(2), 25(3)).
d) In Chapter V, international cooperation is treated in 10 articles (Arts 28–37). The contracting states have to appoint central authorities to accomplish the tasks mentioned in the Convention (Art 28(1)). They have especially to assume the task of cooperation with foreign authorities and to inform foreign authorities about their law and practice of protection of adults (Art 29). According to Art 30, the central authorities are obliged to facilitate communication between the competent authorities in situations where the Convention applies, especially to provide assistance in discovering the whereabouts of an adult when it appears that the adult may be present and in need of protection within the territory of the requested state. The central authorities may also encourage, either directly or through other bodies, the use of mediation or conciliation to achieve agreed solutions for the protection of the adult (Art 31). They have also to assist foreign authorities requesting such assistance and to communicate any pertinent information (Art 32). If, however, the placement of the adult in an establishment is contemplated, they have to consult with other central authorities and determine only if the requested state agrees (Art 33). In case of serious danger, the competent authorities must inform other state authorities but can refrain from doing so if the adult may be placed in danger (Arts 34, 35). The central authorities normally do not impose charges (Art 36), and the cooperation mentioned in the Convention does not exclude other conventions on close cooperation (Art 37).
e) In the general provisions of the Convention (Arts 38–52), it is provided that the contracting states may deliver to the person entrusted with protection of the adult’s person or property a certificate indicating the capacity in which that person is entitled to act (Art 38). There are further provisions on data protection (Arts 39, 40) and provision on states in which two or more systems of law exist (Arts 45, 46).
f) The Hague Convention on the Protection of Adults has been in force since 1 January 2009 in France, Germany, Switzerland and the United Kingdom. This has been done either directly (eg Germany: ratification and implementing legislation) or indirectly in the form of national law (eg the United Kingdom: Sch 3 to the Mental Capacity Act of 2005 and the Adults with Incapacity (Scotland) Act of 2000). The concept of the Convention (competent authorities at the adult’s habitual residence applying their lex fori) is relatively simple and will make the protection of adults easier. It is up to date and consistent with European law: the Brussels IIbis Regulation 2201/2003 does not deal with the matter of protection of adults.
5. Future of protection of adults
With the Hague Convention of the Protection of Adults, the evolution of the law of persons has come to an end. Now, experience must be gathered for a subsequent determination as to what extent the protection of adults can—or should—be further improved by additional conventions.
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