ELI Advance Choices for Future Disablement

Background

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. Advance choices differ from doing or deciding anything with immediate effect only because of the time lag until they become operable. That time lag presents challenges, including in particular:

The emphasis of ‘measures that relate to the exercise of legal capacity’ (as they are termed in the UN Convention on the Rights of Persons with Disabilities of 13 December 2006, A/RES/61/106, (‘CRPD’) Ar. 12.4) has developed in recent decades from incapacitation and protection to autonomy and rights of self-determination. There has thus been a huge growth across Europe in legislative provision for powers of attorney, and uptake by citizens. However, advance choices are more effective, more certain, and comply better with fundamental human rights principles than any other available measures, and as they become more available are likely to follow a similar trajectory to powers of attorney.

Aim

The project aims to shape the developments in the field of advance choices through a comparative approach. It will benefit citizens across Europe by promoting provision, good practice and uptake, with consistency helpful for cross-border understanding and operation, including in urgent situations. It will provide guidance for European states to achieve for their citizens the benefit of being able to make advance choices, with certainty as to what will be their effect when circumstances which they address should arise. The project will thus promote maximum realisation of relevant human and disability rights principles, and will maximise cross-European compatibility and operability.

Outcome