Case Studies

Case Study 1: Eleni

1.1. The case

Eleni, a Greek living in Volos, suffers from a mild form of dementia. In taking decisions regarding her financial and personal interests, she avails herself of the assistance of her son Kostas, who equally lives in Volos and has been appointed her administrator by the local courts.

At one point, Kostas, an IT expert, is posted by his employer in Germany for a period of 18 months. Kostas is willing to settle in Germany for that time together with his wife, his child and his mother, but is unsure as to the implications of this move for the measures of protection taken in Greece in the interest of Eleni and for his ability to rely on such measures to actually assist, and represent where necessary, his mother.

 

1.2. Comments 

Kostas’ concerns reflect the two-fold diversity that the law of adults’ protection currently features in the Member States of the European Union. Substantive rules in this area of law vary from one country to another, and so do – to a large extent – the rules of private international law, meaning the rules that determine the country whose courts are entitled to adopt a measure of protection and supervise its implementation, the rules that identify the law governing the substance of protection and the rules that decide whether a measure of protection issued in one State may be recognised and enforced in another.

 

Specifically, Germany is a party to the Hague Convention of 13 January 2000 on the International Protection of Adults, which lays down uniform rules of private international law in this field, while Greece is not. This means, among other things, that the question whether Greek courts would retain jurisdiction over Eleni’s protection after the move, like the parallel issue of whether German courts would become competent once Eleni settles in Germany, do not fall under the same rules in the two countries, and in fact receive different answer. Similarly, different rules apply, respectively, to the recognition of Greek measures of protection in Germany and the recognition of German measures in Greece. Moreover, German authorities, on the one hand, and Greek authorities, on the other, lack in fact the ability to cooperate between themselves for the protection of Eleni (by exchanging information, etc.). All in all, this may result in contradictions, doubts, hesitations and slowdowns in the protection of Eleni, to the detriment of Eleni herself, the members of her family and of any interested third parties.

 

The picture would improve if Greece ratified the Hague Convention. A common set of rules would govern the jurisdiction of Greek and German courts as regards Eleni's protection, thereby facilitating the coordination of their respective action. A uniform regime would likewise apply to the recognition of the protection measures taken in the two countries, and cooperation would be ensured, via dedicated Central Authorities, between the authorities of the two States.

 

The picture, it is contended, would improve even further if legislation were enacted by the European Union for the purpose of enhancing the operation of the Convention between Member States. For instance, the creation of a European Certificate of Powers of Representation would make it easy for Kostas to rely on his authority as Eleni’s court-appointed administrator and representative for the purposes, among other, of opening a bank account in Germany in Eleni's name, so as to better care for Eleni's day-by-day needs.


Case Study 2: Conor


2.1. The case

Under an enduring power of attorney governed by Irish law, Conor, an Irish citizen living in Ireland, grants his brother, Noah, the power to manage his affairs in the event of incapacity.

 

One day the power of attorney comes into effect and Noah decides to sell, on behalf of his brother, a crashed car that the latter, once an amateur restorer of Citroën cars, had purchased in France a few weeks earlier and still lies in a garage there.


He negotiates a sale price of 1,000 Euros. In order to complete the formalities of the transaction, including the entry of the change of ownership in the French vehicle register, Noah will need to show that his powers can legally be relied upon in France, and will have to provide appropriate evidence of the scope of such powers, typically by producing a stamped, attested copy of Conor’s registered power of attorney.


2.2. Comments


Several practical difficulties are likely to arise in this scenario because of the differences that currently exist between Ireland and France, and more generally between the Member States of the European Union, as regards the law of adults’ protection, and because of the limited effects of the Hague Convention of 13 January 2000 on the International Protection of Adults (which is currently in force for France, but not for Ireland), in relation to the rules of private international law in this area.


Enduring powers of attorney and other forms of private mandates in contemplation of a loss of capacity exist under French legislation. Yet, Article 15(3) of the Hague Convention, which French authorities would apply in the circumstances, states that “the manner of exercise of such powers of representation is governed by the law of the State in which they are exercised.”


The French vehicle register office is therefore likely to require that Noah must be visited by a French registered doctor to confirm his mental capacity and the power then registered at the French Court who would also require a certified translation of Oliver’s instrument, bearing the apostille provided for under the Hague Apostille Convention of 5 October 1961. Fulfilling these requirements could ultimately involve expenses amounting to several thousands of Euros.


Things could not be significantly better if Ireland were also a party to the Hague Convention of 13 January 2000 on the International Protection of Adults. The French authorities, including the vehicle register, would still require local French implementation and confirmation from the French doctor and registration at the French court. If the Convention were in force in Ireland and if registration of the power in Ireland were sufficient to be regarded as a confirmation for the purposes of the Conventions, then Ireland could produce a certificate pursuant to Article 38 of the Convention, which might do away with the need for translations and an Apostille.


Things, it is suggested, would rather be much better, if the rules of the Convention were supplemented by a piece of EU legislation, one aimed, inter alia, to reduce the scope of local law, to make more complete and secure the rules of the Convention that regulate the law governing private mandates, to further facilitate the circulation of measures of protection, including those relating to private mandates, from one Member State to another, and to create a European Certificate of Powers of Representation.