Guarantee, Independent and Guardianship of Adults: Difference between pages

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by''[[Ulrich Drobnig]]''
by ''[[Anne Röthel]]''


== 1. Function and concept ==
== 1. Point and purpose; terminology ==


Looking at its function, the independent guarantee is related to its sibling, the [[Suretyship (Modern Law)|suretyship]]. Like the latter its core function is that of securing the performance of a pecuniary claim resulting from a credit. However, the substantive field of application is considerably broader than that of suretyship. For instance, another important function of the guarantee is to secure claims for [[Damages|damages]] based on the breach of contractual obligations or unilateral undertakings or promises. An example of this last category are the so-called tender guarantees. These often must be given at the customer’s request in case of tenders for major bids in order to secure the orderer’s claims for damages when the bidder, although it was awarded the [[Contract|contract]], refuses to conclude it. Performance guarantees are to protect the creditor against [[Non-Performance|non-performance]] of a [[Contract|contract]].
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.  


Outside the range of guarantees covered here, however, are sellers’ guarantees for buyers of goods which supplement the seller’s implied warranties arising under sales contracts.  
Guardianship of adults is similar to [[Guardianship of Minors|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''.  


Independent guarantees have developed broadly in the course of the 20th century. Economically, they have often replaced the formerly used demand upon the debtor to deposit an amount of money or the holding back of a safety amount by the creditor, both of which aim to secure the creditor in case of the debtor’s breach of contract. In these cases, granting a guarantee enhances the debtor’s liquidity.
In most European legal systems guardianship of adults has developed on the basis of legislation applying to [[Guardianship of Minors|guardianship of minors]]. The original model of continental European guardianship (for adults) had been associated with an entire revocation of legal [[Capacity|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.


The uncertainty about the scope of this legal institution correlates to the uncertainties regarding its denomination. On the European and the international level, the terms ‘independent personal security’ (eg in the DCFR 2009), or, alternatively, ‘independent guarantee’ (eg in the UN Convention of 1995) appear to be established. The common denominator, the independence of this security, encapsulates the core of this institution. In practice the typical and most common type of independent guarantee as a personal security is the bank guarantee; the only, yet legally irrelevant, particularity of this guarantee is the fact that the security provider is a bank.
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)|''Bürgerliches Gesetzbuch'' (BGB)]]), the Dutch ''bewind'' and ''mentorschap'' (Arts 1:431 ff, Arts 1:450 ff [[Burgerlijk Wetboek (BW)|''Burgerlijk Wetboek'' (BW)]]) and the Italian ''amministrazione di sostegno ''(Arts 404 ff [[Codice Civile|''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 488''bis'' ''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. Sources ==
== 2. Tendencies in legal development ==


In contrast to the suretyship, comprehensive statutory regimes on the guarantee are lacking in almost all European countries. Isolated provisions have statutorily approved the guarantee in Austria in 1915 and in France in 2006; scattered provisions also exist in Belgium, Denmark and the Netherlands. In England, a court of first instance first accepted the guarantee in 1704. In the southern European countries the guarantee has only been recognized by case law in the last two decades of the 20th century.
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.  


Earlier than in the field of contract law, the guarantee was implemented in commerce, in particular in international trade. Professional providers of security include especially banks and insurance companies. These institutions drafted contract forms for guarantees at an early stage. On the international level, informal sets of rules have been developed for this purpose. Among these, the uniform rules elaborated by the [[International Chamber of Commerce (ICC)]] (Paris) in the years 1978 and 1991 deserve mention. In the United States, where banks were formerly enjoined from granting guarantees, the so-called stand-by letter of credit has evolved as a substitute, thus a [[Letter of Credit|letter of credit]] for security purposes; for this hybrid there also exists a uniform set of contractual rules.  
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.


A Convention should also be noted here—the UN Convention on Independent Guarantees and Stand-by Letters of Credit of 1995 (in force since 1 January 2000). The Convention only applies to ‘international undertakings’ (Art 4) and so far it has only been ratified by eight smaller countries.  
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).


On the European level, proposed rules on the independent guarantee can be found in Book IV.G DCFR concerning personal securities. Suretyship and independent guarantee are regulated in different chapters of Book IV.G on personal security; they are, however, linked by several general provisions. Consumers are excluded from granting an independent guarantee because of the risk potential of this type of contract. In the United States, the Restatement of Law even merges suretyship and independent guarantee into one set of rules.
== 3. Uniform law ==


== 3. Implementation ==
Aside from the above-mentioned principles of the [[Council of Europe (Harmonization of Private Law)|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|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.  


Like a suretyship, an independent guarantee is mostly based on a contractual relationship between a creditor and a debtor. However, in contrast to a suretyship, a guarantee is legally independent from the underlying legal relationship. A creditor will usually demand an independent guarantee if he has doubts regarding the debtor’s solvency or his willingness to pay, particularly in case of mid- or long-term payment obligations or also (in intercontinental transactions) due to long distances between the parties’ places of business. In commerce, professional guarantee providers are typically banks and insurance companies, to a lesser extent also other merchants; exceptionally, even a private individual may assume an independent guarantee.
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)|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.


The terms of an independent guarantee depend on the agreement of the parties and therefore vary from case to case. However, there exist certain typical clauses (see below). In general, the content of the guarantee’s terms is prescribed by the creditor because it wishes to secure its claim in the best way. These terms are agreed upon between the debtor and the guarantee provider.
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).


Generally speaking, the guarantee provider is only and exclusively permitted to make the promised payment, if the conditions defined between it and the debtor upon which the guarantee becomes due are fulfilled. The provider of the guarantee may, however—in contrast to a surety—not invoke the defences that may be available to the debtor against the creditor according to the underlying legal relationship between those two parties. Obviously, this exclusion of defences resulting from the underlying relationship between debtor and creditor constitutes a great simplification for the creditor as well as for the guarantee provider—but at the same time is risky for the debtor.
It remains doubtful whether the Brussels II''bis'' Regulation ([[Guardianship of Minors|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 II''bis'' Regulation (Reg 2201/2003) has not explicitly been limited to minors. Therefore, it has been suggested that Art 1(2)b Brussels II''bis'' 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|parental responsibility]]) as well as the ''telos'' of Brussels II''bis'' and would also contradict the dissociation of adult protection from guardianship of minors which can be found in all European legal orders.


Two special types of an independent guarantee have to be mentioned. Indirect guarantees are primarily used in the foreign business of banks where a domestic bank issues a guarantee in favour of a foreign client of the customer. If this bank maintains no office or subsidiary in the country of the benefited creditor, it will mandate another bank, which is located there, to issue the guarantee. In this case the guarantee is performed by this second bank which itself may claim a fee and reimbursement of its expenses from the domestic bank. The parties may stipulate that the foreign secondary bank confirms the guarantee to the creditor on its own behalf; yet this is not necessary. This constellation is closely related to a [[Letter of Credit|letter of credit]]. In fact, US banks, before they were allowed to issue guarantees, had used specially drafted [[Letter of Credit|letters of credit]], the so-called stand-by letters of credit ([[Letter of Credit|letter of credit]]) as a substitute for an independent guarantee.
== 4. Future development in Europe ==


Another special type which should be mentioned is the independent guarantee ‘on first demand’. It enjoys a particularly high degree of independence from the underlying legal relationship because the creditor is only required to present a mere demand for performance of the guarantee without the production of documents.
Similar to [[Guardianship of Minors|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).


If the guarantee provider honours the guarantee as ordered, in principle it is—in contrast to a suretyship—not subrogated into the rights of the creditor which the creditor holds against the debtor arising from the underlying contractual relationship—another consequence of the guarantee’s independence. Thus, the guarantee provider must secure itself by means of adequate agreements or advance payments or request a security.  
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.
 
If the guarantee provider honours the guarantee, even though it is not entitled to perform according to the terms of the guarantee, it may be liable to its customer, the debtor, for any damage that the latter sustains due to the fact that it may have to reimburse the guarantee provider’s performance.  
 
Another particularity of the guarantee, which results from its independence from any underlying contractual relationship between creditor and debtor, is the risk of abuse by the creditor. In international business it is far from rare—particularly where the creditor is outside of Europe or North America—that creditors persuade the guarantee provider to perform the guarantee by submitting forged documents when in fact the conditions for performance are not satisfied. Such abuses have occurred so frequently that courts in many countries have developed special remedies: the courts allow the debtors thereby affected to produce present evidence of an abuse to obtain interim injunctions which enjoin the guarantee provider from honouring the guarantee. In this process, the guarantee providers themselves easily become caught in a crossfire as in these cases, in the event of non-performance, they are exposed to the risk of liability claims from their creditors. On the other hand, if unjustified demands based upon the guarantee are honoured, the guarantors may be exposed to reimbursement claims from their customers, the debtors. This is another reason why rules dealing as strictly as possible with such abusive demands are desired and are very common.
 
== 4. Trend ==
 
The guarantee business is specialized and frequently transnational. These two aspects have facilitated—due to the lack of national provisions and the nearly unlimited freedom of contract—the achievement of a high degree of international uniformity by means of uniform contract forms and the consolidation of the relevant trade usages. The core principles outlined above have also influenced the UN Convention of 1995 as well as the DCFR. One can be confident that in the future new, internationally accepted developments will be reflected in the periodically revised Uniform Rules of the International Chamber of Commerce—a role model for the life and effect of an autonomous, flexible international trade law.


==Literature==
==Literature==
Herman Johan Pabbruwe, ''Bankgarantie'' (4th&nbsp;edn, 2000); Friedrich Graf von Westphalen and Brigitta Jud (eds), ''Die Bankgarantie im internationalen Handelsverkehr ''(3rd&nbsp;edn, 2005); Matti S Kurkela, ''Letters of Credit and Bank Guarantees Under International Trade Law'' (2nd&nbsp;edn, 2008); Philip Simler, ''Cautionnement'','' Garanties autonomes'','' Garanties indemnitaires'' (4th&nbsp;edn, 2008) 851–1011; Christian Förster, ''Die Fusion von Bürgschaft und Garantie'' (2010) 93.</div>
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&nbsp;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’ [2004] 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’ [2007] Familie, Partnerschaft, Recht 79; Anne Röthel, ‘Private Vorsorge im internationalen Rechtsverkehr’ in Volker Lipp, Anne Röthel and Jürgen Spalckhaver, ''Handbuch der Privaten Vorsorge'' (2009).</div>




[[Category:A–Z]]
[[Category:A–Z]]
[[de:Garantie]]
[[de:Betreuung_(rechtliche_Fürsorge_für_Erwachsene)]]

Latest revision as of 18:39, 5 June 2025

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.

Literature

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’ [2004] 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’ [2007] Familie, Partnerschaft, Recht 79; Anne Röthel, ‘Private Vorsorge im internationalen Rechtsverkehr’ in Volker Lipp, Anne Röthel and Jürgen Spalckhaver, Handbuch der Privaten Vorsorge (2009).

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