In 1999, the Council of Europe recommended (Rec(99)4) that ‘consideration should be given to the need to provide for, and regulate’, [anticipatory arrangements for subsequent incapacity]’. A decade later, Rec (2009)11 (Principle 1) was significantly more insistent. Principle 14 of Rec(2014)2 was similarly insistent, ‘Member states should provide for legislation …’. While substantial progress has been made in certain respects, very little has been done in relation to advance directives.
Advance choices enable people to give instructions, record preferences and express wishes in advance of a time when they may be disabled from doing so due to mental or intellectual disabilities. In recent years, a progressive switch from non-voluntary measures, such as guardianship, towards measures established by people themselves, such as private mandates and powers of attorney, can be observed. Compared to these available measures, advance choices are, however, more effective, more certain, and comply better with fundamental human rights principles, because they are not modulated through a guardian, attorney or anyone else. They differ from doing or deciding anything with immediate effect only because of the time lag until they become operable.
The ELI project, led by ELI Council Member Christiana Fountoulakis and ELI Member Adrian D Ward, will therefore explore these challenges with a view to shaping the developments in the field through a comparative approach. The outcome of the project will be draft model laws for advance choices, with appropriate supporting material. The model laws will seek to offer optimum provision for advance choices, with as much consistency as is reasonably achievable across Europe. The supporting materials will encourage and enable States to legislate accordingly, and will thereafter assist each State in the education of the public and professionals, and encourage uptake.
The project builds upon previous ELI work in the field of the protection of vulnerable adults, in particular its 2020 Report on the Protection of Adults in International Situations and 2022 Response to the European Commission's Public Consultation on the Initiative on the Cross-Border Protection of Vulnerable Adults.
