Pascal Pichonnaz (Chair; ELI President; Professor, University of Fribourg) opened the webinar by welcoming participants and introducing the speakers. The event is the first of ELI’s recently launched kick-off webinars aimed at introducing recently adopted projects to ELI members and the broader legal public.
Project Co-Reporters, Christiana Fountoulakis (Professor, University of Fribourg) and Adrian D Ward (lawyer (Scottish solicitor) and independent consultant) outlined the above project and its aim. The idea is to empower people to decide on various elements of their lives now, before a time comes when they may no longer be able to do so. This aim would be reached by encouraging the above to compile advance directives expressing their instructions, preferences and wishes. The Reporters will consider several questions when drafting the output, for instance, whether people should be able to express wishes and give instructions across all areas of law or whether there should be certain clear exclusions; and what formalities should be required.
Ilaria Pretelli (legal counsel and expert in private international law, Swiss Institute of Comparative Law) intervened next, in her capacity of Project Assessor and Members Consultative Committee (MCC) Chair. She congratulated the Reporters for the genial concept, which will be able to ensure to the highest possible degree the exercise of party autonomy. She noted that the project is a natural continuation of other very important ELI projects that similarly encourage such autonomy including ELI’s Empowering European Families project completed in 2019 and ELI’s Protection of Adults in International Situations project, completed in 2020. She welcomed the paradigm shift that occurred several decades ago, from protecting property from its vulnerable adult owner to assisting adults to make their own decisions, including on property matters. Finally, she warmly encouraged ELI members, as well as members with pending applications, to join the project’s MCC and contribute to developing it. She emphasised that everyone is invited to participate, regardless of their field of expertise, adding that collegiality strengthens the outcome of ELI projects.
Richard Frimston (Consultant, Russell-Cooke Solicitors) followed. He picked up on ELI’s previous project in the field, which focused on the Hague Convention of 2000, and on whether Europe might think about how it can be brought further into effect in Europe and whether anything more should be done. He also pointed to the rapid change of language in the field, whether advance choices can be considered a measure of protection and if not whether they should be. He also questioned whether the Convention should be amended to include them. The fundamental problem he said was that legal people still look at legal capacity as an on-off switch even though this is not necessarily the case; a person can lose capacity in some areas but not in others, necessitating a mechanism which could take into account various degrees of incapacity. Finally, he stressed that the right to self-determination is recognised as a fundamental right and therefore the power of representation should be respected within the EU, where there is freedom of movement, and this should also apply to advance choices. He congratulated the Reporters on the wonderful project and said he looked forward to seeing it evolve.
After the insightful presentations, there was a lively Q&A session where people shared their opinions on topics including enforceability, the viability of maintaining a European registry, the right to vote, a potential procedure for recognition across countries and on what prevails where there is a contradictory advanced choice and power of attorney.
The recording of the webinar is available below.
