ELI Report on the Protection of Adults in International Situations

Summary

The project aimed at encouraging the European Union to consider both external action and the enactment of legislation in the field of protection of adults.

Background

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 (Catholic University of the Sacred Heart, Milan, Italy; formerly University of Ferrara, Italy), and Richard Frimston (Russell-Cooke Solicitors, UK) were appointed as Project Reporters.

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.

Objectives

The project aimed at encouraging the European Union to consider both external action and the enactment of legislation in the field of protection of adults.

Outcome

In 2018, the Project Team drew up a Position Paper which can be accessed here. Kindly note that the statements and recommendations contained in the paper were not approved or endorsed by any statutory body of ELI and thus should not be taken to represent an official Statement, Instrument or position of ELI.

On 21 March 2020, ELI’s Membership approved the Project Team’s final report. The outcome is an analysis on the protection of adults in international situations. Where appropriate, it includes proposals regarding such protection as well as further issues surrounding the application of the Hague Convention of 13 January 2000 on the International Protection of Adults.  It addresses the following issues: (a) the bases and scope of the Union’s competences as regards the protection of adults in international situations; (b) the strategies that the Union should consider following in order to enhance the protection of adults in the relations between Member States; and (c) further improvements that the Union may promote with respect to the Hague Convention of 13 January 2000 on the International Protection of Adults without making use of its external competence or its legislative powers. Such analysis and proposals are put forward in preparation for the Special Commission on the Convention that the Hague Conference on Private International Law plans to convene in 2022. The report also includes a checklist intended for practitioners, to encourage the development of private mandates within the ambit of the substantive laws of the Member States.

Strides were and will be taken to bring the text to the attention of European institutions, the institutions of Member States (and selected third countries) and relevant stakeholders. The project was already presented to Members of the European Parliament, an ELI Institutional Member and an Observer to the ELI project. The report has also recently been brought to the attention of UK Law Societies, legislators and the Ministry of Justice, as the UK parliament is presently discussing legislation on private international law due to Brexit.

Case Studies

For illustrative examples that the Protection of Adults in International Situations project sought to tackle, please click here.