Protection of Adults in International Situations

In its decision 2017/5 of 6 September 2017, the ELI Council adopted the proposal for this project to be carried out under the regular procedure in line with Article 12(2)(a) of the ELI Statute. Pietro Franzina (University of Ferrara, Italy), and Richard Frimston (Russell-Cooke Solicitors, UK) were appointed as project reporters.

QUICK FACTS

Project Type: Instrument 
Procedure: Normal
Adopted: CD 2017/5 (on Projects) 
Project Period: September 2017Spring 2018

Background

The ‘adults’ to which this project refers are persons aged 18 or more who are not in a position to protect their interests due to an impairment or insufficiency of their personal faculties. During the time in which they experience this condition, they may need support to exercise their legal capacity. This may occur, for example, prior to a medical treatment, when the consent of the adult must be obtained, or in respect of transactions involving the adult’s assets. Support may be provided in different forms. State authorities may appoint a person (who may be called a guardian, a deputy, an administrator, etc) and charge him with assisting the adult in respect of one or more acts, or in acting on his behalf. As an alternative, it is now provided in several countries that the adult himself can enter into a special kind of mandate and appoint himself an attorney in contemplation of a future loss of autonomy.

Today, due to the increasing mobility of individuals (and their assets), the protection of adults is more and more frequently at issue in international scenarios. The authorities of a State may thus be seised of the protection of an adult who is not a national of that State, or may be asked to supervise a guardian whose duties are to be performed, in part, on the territory of a different country. In these cases, the need arises to identify the State whose authorities have jurisdiction over the matter, the law applicable to the substance of the protection, and the conditions subject to which the measures and other instruments issued in one State to protect the person and property of an adult may effectively be relied upon in another.

 

Outline

Within the course of the project, the team members intend to (a) address some general and preliminary issues (eg, whether the protection of adults falls within the scope of ‘family law’ for the purposes of Article 81(3) TFEU, what relationship should exist between the Hague Convention and the envisaged EU legislative measure etc), sketch the outline and set forth the key provisions of the envisaged measure (as regards, eg, the proposed European Certificate of Representation, or the possibility, for the adult concerned, to include in his mandate a choice-of-court clause); (b) promote a broad exchange of views on such general outline and key provisions with practitioners and academics; and (c) based on the above, lay down a final and detailed draft text of a possible EU measure on the protection of adults in international situations.

 

Objectives

The proposed project purports to elaborate on the European Parliament resolution’s ‘principles and aims’ with a view to laying down the text of a possible measure to be adopted at EU level. The text will then be brought to the attention of European institutions, the institutions of Member States (and selected third countries) and relevant stakeholders.

PROJECT REPORTERS

  • Pietro Franzina
  • Richard Frimston

ADVISORY COMMITTEE MEMBERS

  • Alberto Muñoz Fernández
  • Bea Verschraegen
  • Corrado Malberti
  • Elena Bargelli
  • Stefania Bariatti
  • Ulf Bergquist
  • Volker Lipp

MEMBERS CONSULTATIVE COMMITTEE

  • Albert Maria Rosario (Charo)
  • Gregor Christandl
  • Bubliene Danguole
  • Cecilia Gómez-Salvago Sánchez
  • Florian Heindler
  • Navarro-Michel Monica
  • Ioana Olaru
  • Valentin Rétornaz

OBSERVERS

  • European Commission
  • European Parliament
  • Unité de droit internatonal privé of the Swiss Federal Department of Justice

OTHER PROJECT TEAM MEMBERS

    • Regina Aebi-Mueller
    • Maja Groff
    • Janvon Hein
    • Alex Ruck Keene
    • Thalia Kruger
    • Joëlle Long
    • Alice Perscha
    • Jean-Christophe Rega
    • Christian Schall
    • Renate Schaub
    • Fumie Suga
    • Frederik Swennen
    • Adrian D Ward