Capacitating personal capacity: cross-border regulation of guardianship alternatives for adults

Abstract

Increasing global mobility of people with disabilities, changes in the measures employed to protect them, and growing awareness of their human rights significantly challenge the existing cross-border protection of adults around the world. National legislations are slow to react to this challenge, and the existing solutions are often insufficient. While the Hague Convention on the Protection of Adults (2000) is imperfect, it offers a solution to this problem. This article discusses the changing approach towards people with disabilities and their rights and demonstrates the incompatibility of the local protection of adults with their cross-border protection. The article further explores possible solutions to this problem. It then explains why the Hague Adults Convention is the best solution to this problem and what changes should and could be made in order to improve the solution offered by the Convention even further.

Keywords:

• protection of adults
• cross-border human rights
• legal capacity
• Hague Convention on the Protection of Adults (2000)
• UNCRPD

A. Introduction

Grow old along with me!

The best is yet to be,

The last of life, for which the first was made:

[…]

A whole I planned,

youth shows but half; Trust God: See all, nor be afraid!¹

Recent decades have brought about heightened socio-legal awareness of the autonomy and dignity of elderly and other people with mental, physical or cognitive disabilities. While institutions such as guardianship and curatorship were originally created as protective measures for adults lacking capacity,² nowadays they are perceived increasingly as extreme measures that strip people of their personhood and infringe on their autonomy and dignity. This criticism is made not only by scholars and lawyers but also by the general public, particularly surrounding the notable case of Britney Spears and the #FreeBritney movement.³

Countries worldwide started addressing this issue some 30 years ago, by offering more subtle options for guardianship. Consequently, many countries have diversified their guardianship regimes to include moderate solutions that strive to enable more respectful support of people at risk. In legal terms, this diversification transforms capacity from a binary matter (capacitated/incapacitated) to a matter of spectrum. It also suggests that capacity is no longer a matter of status, but instead more focused on autonomy and personal choice.⁴ Finally, this trend also reflects an understanding that people with disabilities are no longer confined to a bed or an institution. Instead, they might, and should be allowed to, have full and active lives that would include engaging in various business and personal activities.

However, this thoughtfulness is not properly developed at the international level, as the cross-border regulation of these protective measures was left largely neglected. It almost seems like people with various disabilities may partake in life as fully as possible, but not cross borders; protective measures are being developed, but their cross-border transferability is all but ignored. Indeed, some measures might not be recognised in other jurisdictions due to the way they were created (eg, as a private mandate or under a law to which one has an insufficient connection). Or, they might be recognised but understood differently than intended, with altered consequences, since the content of the various tools differs between jurisdictions. Such measures might also suffer from shortcomings relating to dated choice of law rules that do not reflect the revolution undergone by substantive law.

This paper discusses and offers ways to ensure the cross-border protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests (hereinafter: adults).⁵ Part B sets the background of the discussion by presenting how the treatment of persons with disabilities (including, but not limited to, the elderly) transformed from societal protection through personal protection to personal respect. As discussed in Part B, this transformation triggered the downfall of guardianship and the rise of alternatives that offer a more nuanced (yet imperfect) approach to capacity. Part C describes a few alternatives to guardianship in three progressive jurisdictions and focuses on their diverse features. Such measures are gaining increasing traction as the preferable way to protect adults; hence their importance, on the one hand, and the challenge stemming from their diversity on the other. Part D offers a possible framework for the cross-border management of various protection mechanisms, namely the Hague Convention on the Protection of Adults (2000), reviewing its mechanisms and stressing its benefits. Part E discusses the shortcomings of this Convention and the ways to minimise them, through its interpretation and application and some complementary changes within the legislation of individual Contracting States. By taking these steps, countries may ensure a level of protection that is both acceptable and achievable.

B. Background: the rise and fall of guardianship

In recent years, incapacity is revisited by jurists and activists who try to apply human rights norms to the age-old tools used to protect vulnerable individuals from possibly harming themselves or others in society. In early times, the mentally or cognitively disabled were sometimes considered “non-human” and thus deprived of rights and privileges associated with civilised society.⁶ Guardianship was concerned with protecting family fortunes and containing unstable persons.⁷ At that time, the notion of protecting the incapacitated person was not part of guardianship law. Indeed, while “the ward’s property has always been well cared for, his body, depending upon the temper of the times, has at worst been subjected to tortures designed to exorcise the spirits possessing it, and at best been cared for privately by friends or relatives.”⁸ Generally, this approach, which nowadays seems dated and inhumane, carried on as a legal norm through the humanistic revolutions of the Renaissance⁹ and the Enlightenment.¹⁰ But with time, things changed. People with disabilities were more and more understood as patients¹¹ who have rights rather than inmates.¹²

An important step forward was made in the UN Declaration of General and Special Rights of the Mentally Retarded, 1968, which was the first international legal document to identify such persons as deserving of rights beyond food, shelter, clothing and basic care.¹³ The declaration recognised such persons as entitled to various rights including education and training, economic security, work, participation in family and community life, protection from exploitation, as well as the right to exercise their rights in a meaningful way.¹⁴ However, this declaration still considered guardianship as the way to support such persons, and stated a right to a qualified guardian who would protect personal well-being and interests.¹⁵

What the Declaration of General and Special Rights of the Mentally Retarded hinted at became more apparent with time; namely, even the best of guardians are an intense interference with personhood. After all, guardianship often extended to “limit or take away the ward’s right to make contracts; sell, purchase, mortgage or lease property; initiate or defend against suits; make a will or revoke one; engage in certain professions; lend or borrow money; appoint agents; divorce or marry; refuse medical treatment, keep and care for children, serve in a jury, be a witness to any legal document; drive a car; pay or collect debts; and manage or run a business.”¹⁶ Therefore, guardianship was described as a double-edged sword, which protected individuals, but at the same time took away their personhood and stripped them of their fundamental rights.¹⁷ Consequently, with time, a distinction was drawn between legal and mental capacity, so that mental incapacity would not automatically result in legal incapacity.¹⁸ Indeed, conversely, in some countries, the legal capacity of mentally capable people might also be limited, if they are addicted to alcohol, drugs or irresponsible financial behaviour.¹⁹

Notably, the Convention on the Rights of People with Disabilities, 2007 (CRPD)²⁰ ratified or acceded to by 188 parties to date,²¹ changed not only the language (“people with disabilities” instead of “lunatics,” “retarded,” and the like) but more importantly, the substance. The CRPD recognised not only the right of people with disabilities to be protected and supported, as its predecessors did. It added a new and important right to “full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.”²² Thus, it offered a reinterpretation of people with disabilities as not defined by their infliction, but rather needing some accommodations due to it.

Based on this new perception and focus on the individual’s personhood rather than defining people through their disability, the suitability and inevitability of guardianship for some people was questioned, and the limitations caused by guardianship became less tolerable, at least with regard to some disabilities.²³ Accordingly, the CRPD clearly stipulated that the measures relating to the exercise of legal capacity and rights be proportional and tailored to the person’s circumstances.²⁴ In complying with these demands and the human right norms they reflect, various countries have developed various tools that may serve as alternatives to guardianship in appropriate cases.

C. Alternatives to guardianship

The winds of change regarding the appropriate way to protect people with disabilities started blowing even before the introduction of the CRPD, most notably following the Council of Europe’s work on the subject.²⁵ Some countries were quick to react to these changes. One of the first was Sweden, where the guardianship of adults was abolished from the law in 1989.²⁶ In its place, two alternative support mechanisms for people with disabilities were enacted: the god man (literally: good man) or mentor, custodian; and the förvaltare, or administrator, trustee.²⁷ Both measures are court-appointed²⁸ and supervised by the court or Chief Guardian.²⁹ However, while the appointment of a god man and the identity of the appointee are usually subject to the represented person’s consent, the appointment of and the identity of the förvaltare are not.³⁰ The förvaltare is a more invasive and drastic tool, which bans the person for whom the appointment was made to act on his own in the areas of the appointment.³¹ Hence, such appointments will only be made in a situation that cannot be managed by a god man or another, less drastic, measure.³² Moreover, those appointed as förvaltares usually have a very specific mandate.³³ The god man’s appointment, on the other hand, is generally broader in scope, and it does not void the capacity to act of the person for whom the appointment was made (although in practice, it is often the case that the person can no longer act on her own).³⁴

Another country often cited for its quick reaction to the CRPD is Israel.³⁵ Following an amendment made in 2016,³⁶ the Israeli law now offers a two-alternative structure similar to that of Sweden. Though Israeli law still offers the option of guardianship of adults,³⁷ the courts tend to avoid it and use instead one of the two other options that the law promotes; namely, the durable power of attorney (DPA)³⁸ or the supported decision-making (SDM) mechanism.³⁹ While guardianship and SDM are court-appointed mechanisms, the DPA is a semi-private mandate in that it is created privately with the help of attorneys who have undergone designated training,⁴⁰ but it must be registered and deposited at the Administrator General’s office.⁴¹

The DPA can include instructions regarding a person’s medical decision-making, the management of assets and everyday life.⁴² The appointer might specifically name the person(s) to be appointed to manage each question.⁴³ Similarly to the Swedish god man, the appointment through a durable power of attorney does not void the capacity of the appointer to act, though it is assumed that only when the appointer can no longer act for herself will the appointee (or appointees, if such was the appointment) be able to make decisions for the appointer.⁴⁴

Another mechanism Israeli law offers is SDM. This is a court-made appointment for a person who needs support in making decisions. Unlike the previously discussed mechanisms, the SDM does not grant any decision power to the appointee. All it does is afford the appointee access to information to help the appointer make her own decision.⁴⁵

Lastly, many of Canada’s provinces are also often mentioned for their progressive attitude towards people with disabilities, and particularly Ontario, where legislation was amended in 1992 to promote the rights of people with disabilities.⁴⁶ At first glance, the Ontarian structure seems very similar to the Israeli one. Like in Israel, while guardianship is an option, it will only be invoked in the absence of another alternative.⁴⁷ In helping people who require assistance understanding information relevant to their care or interests,⁴⁸ it offers two mechanisms: continuing power of attorney (CAP) and a guardian. The CAP is similar to the Israeli DPA.⁴⁹ It is made by adults⁵⁰ who plan for a future when they might be unable to make decisions for themselves, and it can address property and personal care.⁵¹ However, unlike the Israeli arrangement, this mechanism needs no registration and is completely private.

For an adult who can no longer make decisions independently and has left no appropriate instructions, courts in Ontario may appoint a guardian. The outcomes of such an appointment are similar to those of a CAP. However, the difference in the way of appointment might make a significant difference in some cases (eg, when cross-border recognition is sought, as will be discussed below). Hence, this is a case of two different arrangements using the same name. More importantly, unlike the Israeli SDM, the Ontarian guardian does not support decision-making but rather substitutes the original decision-maker. While the law mandates that the appointee consult the adult and encourage the adult to weigh in on decisions,⁵² ultimately such appointees are expected to decide for adults who are unable to act for themselves.

These are all local arrangements. But people with disabilities could always have cross-border financial interests that require cross-border protection. Moreover, nowadays, global travel and business are available to many. In some cases, one’s disability is such that it mandates protection but does not hinder leisure travel. In other cases, disability might even be the cause for travel, either for medical tourism or because the rising costs of elder (and other) care causes people with disabilities to travel (and sometimes to be sent) from Western countries to other countries, mainly in South East Asia for better, more affordable care.⁵³ In either case, people with disabilities might have assets and financial interests that stretch beyond their home country, which need management and protection, especially when the owner becomes more vulnerable.

While the various protective measures discussed above reflect the best of intentions locally, their cross-border reality is rather challenging. Assume a question is brought before an English court regarding a decision made by a court-appointed person on behalf of another. Before any conflicts question is even discussed, the court must first understand the type of mechanism employed. If it is the Swedish arrangement, which is rather unique, the court must verse itself with an unfamiliar instrument. The arrangement might also be one that is generally known to the court, but under a different name; eg, DPA in Israel and CAP in Ontario. Moreover, as discussed above regarding these two arrangements, even where the outcomes are similar, differences in the way the arrangements are created (in the DPA/CAP example, by a public or a private mandate) might prove significant. The arrangement might also be similar in name but fundamentally different in employment, such as the case of an Israeli SDM, where the appointee cannot decide for the adult but only support his or her decisions, compared to the Ontarian guardian, where the appointee decides for the adult. The more jurisdictions one considers, the more this problem is exacerbated. Given this complexity, even the jurisdictions considered forward-thinking in their approach to the protection of people with disabilities do not seem to have extended their care broadly to the cross-border level. Thus, for example, Sweden, which is recognised globally for its pro-disabilities approach,⁵⁴ does recognise foreign protective measures. But although Swedish domestic law contains instruments offering different levels of intervention and protection and does not use guardianship, as discussed above, when dealing with foreign protective measures, designated rules exist only for the recognition of guardianship. Moreover, foreign guardianships will be interpreted as the maximally intrusive measure available in Sweden – that of förvaltare.⁵⁵ This is certainly an advance compared to other countries, such as many US states, which are even less accommodating and are only willing to recognise protective measures created according to their local law.⁵⁶ Indeed, even the more accepting Swedish norm poses the heavy burden of continually planning ahead and creating designated measures for every trip or item of property.

In Israel, the law does not directly discuss the recognition of foreign protection mechanisms. Mechanisms that are incorporated into court decisions might be enforced through the general legislation regarding the enforcement of foreign judgments.⁵⁷ However, Israel currently has no set system for the recognition of foreign judgments, including protective appointments. Even when mere recognition is sought – eg, in order to make a foreign declaration of limited capacity binding in Israel – the law does not prescribe a way to do so.⁵⁸ Moreover, while the current leading mechanism under Israeli law is the DPA, the law does not discuss the recognition of such foreign measures beyond stating that the validity and extent of such measures would be governed by the law of the appointer’s domicile at the time of appointment.⁵⁹ Other questions, such as the law governing subsequent changes to the DPA or annulment thereof, are not covered. Finally, the law offers no rules for the management of other foreign protective measures.

Similarly, in Ontario, the law addresses two questions: the formal validity and revocation of powers of attorney, including foreign ones (such as the Israeli DPA),⁶⁰ and the resealing (ie, the entry into force in Ontario) of foreign appointments “having duties comparable to those of a guardian.”⁶¹ This framing excludes less-intrusive instruments such as the Israeli SDM.⁶² Further, once resealing is done, the foreign order attains the effect of guardianship made locally.⁶³ Therefore, any differences between the foreign arrangement and the local one – even in important aspects such as the extent of appointment, oversight, and nature of power granted to the appointee – are insufficiently protected.⁶⁴ This modification is a serious flaw, but the alternative is no less challenging. For example, the German DPA, which is generally very similar to the Israeli one, differs in the extent of financial leeway it affords the appointee – a fact that has already caused difficulties when recognising the German tool in Israel.⁶⁵

While guardianship was a “brand name” mechanism in that many jurisdictions used it, knew its meaning and were able to apply it (despite the difference in the exact arrangements it involved), the new protection mechanisms do not enjoy this broad understanding and global acceptance.⁶⁶ Indeed, the transnational management of protective measures – such as durable powers of attorney in Sweden, Israel and Canada, which are by no means exceptional in their inadequacy⁶⁷ – raises several concerns.

The first is the problem of translation; that is, how a legal system deals with a mechanism that is unique to another system. This issue is similar but not identical to the problem of characterisation, as it not only deals with the category of the foreign measure but also with its details within that category.⁶⁸ Unlike guardianship, some modern protective measures are not very well known. And while a judge in Canada is likely to have a general understanding of Israel’s DPAs, she might find it harder to understand the Israeli SDM or the Swedish (and other such unique) measures.

The second is the problem of transformation; that is, how to disambiguate measures that use the same name but differ significantly in details. While the details of guardianship arrangements may differ, traditionally such arrangements were rather similar in essence, and legal systems created mechanisms enabling decisions as to when differences would be respected or ignored. In contrast, while some arrangements in various countries use similar names, similarly-titled mechanisms can differ greatly in substance, as in the above-mentioned example of German DPAs in Israel: The Israeli DPA details a list of limitations on financial actions that are only allowed upon the explicit instruction given in advance by the adult.⁶⁹ Some actions require court approval (sometimes on top of explicit instructions) in order to be valid.⁷⁰ Other jurisdictions, such as Germany, do not make such requirements in their DPA regulations.⁷¹ Consequently, in a case where no explicit instruction was given in advance, an appointee representing a German adult might be faced with an unexpected limitation when acting in Israel, and a foreign jurisdiction such as Germany might be unaware of the fact that an Israeli appointee is acting ultra-vires, due to the legal differences between protective measures.

D. The Hague adults convention

Practitioners and scholars of private international law have noted a confluence of factors creating a new reality regarding the protection of adults: the growing mobility of people with disabilities, the increasing awareness of the rights of people with disabilities, the commitment of states to these rights, the transnational challenges associated with them, and the complexity caused by changes in the way the law protects adults.⁷² Further, the attention given to the protection of children with the introduction of the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the Children’s Convention) added to all of the above and shone a light on the need to better protect not only children but also vulnerable adults.⁷³ Especially since the previous Hague Convention dealing with protective measures⁷⁴ was considered “old-fashioned and little used”.⁷⁵ Several regional mechanisms were created to tackle this issue,⁷⁶ but a revised global system was also in order.

The possibility of a Convention designated for the protection of adults was first mentioned by the Hague Conference in 1993, however at the time the proposition seemed almost like an afterthought of what later became the Children’s Convention.⁷⁷ The realisation of the Children’s Convention, as well as the demographic, medical, and social changes and the shift in the attitude towards people with disabilities,⁷⁸ caused the realisation of this plan at the turn of the millennium. In 2000, the Hague Conference on Private International Law concluded the Convention on the Protection of Adults (hereinafter the Convention or the HCCH Adults Convention).⁷⁹

The Convention is intended to offer transnational protection to adults⁸⁰ who are unable to protect themselves due to “an impairment or insufficiency of their personal faculties”;⁸¹ that is, any mental, cognitive or relevant physical disability. Importantly, this definition does not include capacity, thus allowing the Convention to offer protection without incapacitation and align itself with the norms promoted by the CRPD.⁸²

The Convention regulates a series of questions, following the model, structure and subject-matter coverage of the Children’s Convention, thus discussing all issues of private international law concerning the protection of adults.⁸³ It identifies the state authorised to take measures to protect an adult (ie, the question of jurisdiction); determines the law applicable to the exercise of such authority and the representation of the person (ie, the question of choice of law); and creates recognition and enforcement schemes for protective measures among all Contracting States (ie, the question of foreign judgments). It also calls for the establishment of a cooperation mechanism between Contracting States.⁸⁴ In so doing, the Convention aims to create a comprehensive arrangement solving difficulties that arise in issues of jurisdiction, choice of law and foreign judgments.

1. Jurisdiction

In the realm of jurisdiction, the Convention is more flexible than the Children’s Convention, in that it does not strive to avoid all competition between jurisdictions, but instead prefers to support the action of the person acting for the benefit of the adults by allowing some flexibility.⁸⁵ Like the Children’s Convention, the core of the arrangement in the Convention deems that the country authorised to discuss an adult’s legal status and to take measures to protect her and her property (either judicially or administratively) is the country of habitual residence.⁸⁶ However in situations where the authorities in the country of citizenship consider themselves better positioned to assess the interests of the adult, the Convention deems that they too can acquire authority to discuss the said issues after advising the country of habitual residence.⁸⁷ Similarly, the Convention also creates a designated secondary rule for jurisdiction in relation to the management of assets, which authorises the country of the situs of the assets to conduct proceedings in their regard, even if that country is not the adult’s country of citizenship or residence.⁸⁸ Moreover, in situations where the state of citizenship, which is not the situs of assets, considers itself to be better positioned to protect the person, it too can acquire authority to discuss the management of the assets as long as the actions of this country are compatible with those taken by the authorities that have the main jurisdiction (that is, jurisdiction established through a personal connecting factor, mainly habitual residence, as discussed above).⁸⁹

Lastly, the Convention also establishes a rule for urgent cases only, according to which the state in whose territory the adult or her property is present has jurisdiction to take any necessary measures of protection.⁹⁰ Additionally, the validity of such urgent measures lapses immediately once appropriate measures are taken by a Contracting State (or, in the case of a non-Contracting State, as soon as the Contracting State taking the temporary measures recognises the actions of the non-Contracting State)⁹¹ that has jurisdiction based on a personal connection with the adult – usually, the adult’s country of habitual residence.⁹²

The Convention does not define the term “habitual residence” and leaves the exact definition to the authorities and courts employing jurisdiction.⁹³ The Convention focuses on the adult and her habitual residence, regardless of her legal capacity or the appointment of a representative for her, so that even if a representative is appointed, the facts of the adult’s life are the deciding factor in determining habitual residence.⁹⁴ This reality differs from the laws of some countries that use connecting factors of an appointed representative instead of the adult herself.⁹⁵ This focus on the adult herself instead of her representatives is particularly important as it reflects recognition of the dignity and personhood of the adult and her centrality in any discussion regarding her being or her property. The Convention also addresses the intertemporal question, deeming that in the event of a change in the adult’s place of residence, her new country of residence will have jurisdiction.⁹⁶

2. Choice of law

When discussing choice of law, the Convention follows the Children’s Convention⁹⁷ and deems that the law of the forum shall apply, unless the protection of the adult requires the application of the law of another country to which the case has a significant connection.⁹⁸ However, this application of lex fori in no way characterises the matter as procedural or administrative by the drafters. Instead, this application reflects thinking similar to that done in other matters of personal status, according to which one’s personal law applies.⁹⁹ However, it applies indirectly, through the jurisdiction rule (similarly to the case of divorce in the UK, for example¹⁰⁰).¹⁰¹ The jurisdiction rules of the Convention guarantee that the country entertaining the proceedings – hence, its law – will have a real and sufficient connection to the adult. This set of rules makes the law of that country suitable and sufficiently connected to the adult in question, hence upholding the principle of applying personal law to matters of personal status.¹⁰² While, as mentioned in the introduction and discussed further in E.2.(d) below, the application of personal law might no longer be strictly necessary due to the shift of capacity out of the realm of traditional status, it is nonetheless a good starting point. It is also advisable due to the public law nature of some protective measures and efficiency considerations.¹⁰³

Indeed, emergency measures may be placed by, and according to the law of, a country that lacks this significant connection to the adult (eg, when jurisdiction is acquired through the situs of assets, as discussed above). But under the circumstances of the need for quick action and in light of the temporary nature of the measures, even the limited connection between person and state might suffice for the purpose of establishing temporary measures. Furthermore, while the Convention applies lex fori as a general rule, it does allow, in cases where the protection of the adult or the property so requires, to take the law of another state with which the situation has a substantial connection into consideration.¹⁰⁴ Lastly, the Convention states that the implementation of measures taken in a Contracting State in another Contracting State will be governed by the law of the state where the measures are implemented.¹⁰⁵

Alongside the general choice of law rule, the Convention also establishes a dedicated choice of law rule for power of representation (POR) taken out by an adult in advance, to be exercised when the adult is not in a position to protect her interests. This rule subjects the POR to the law of the adult’s habitual residence at the time the POR was created, unless the adult distinctly chose to apply her law of nationality, the law of the state of her former habitual residence, or the law of the state where the property is located, if property is at stake.¹⁰⁶

Finally, the Convention also addresses various other important, conflict-related questions, including the validity of a transaction entered into between a third party and another person who would be entitled to act as the adult's representative under the law of the state where the transaction was concluded, and deems such transactions as valid.¹⁰⁷ This fits nicely and reflects a line of thought similar to the above-mentioned rule subjecting the implementation of measures to the law of the state where the measures are implemented. The Convention also addresses renvoi (and rejects it, as is common in Hague Conventions and other current legislation)¹⁰⁸ and allows for the application of overriding mandatory rules of states¹⁰⁹ and their public policies.¹¹⁰

3. Recognition and enforcement

As part of its comprehensive approach, and similarly to the Children’s Convention,¹¹¹ the Convention also addresses in detail the issue of recognition and enforcement of measures taken by Contracting States. While as a matter of principle, the Convention states that measures taken in one country and enforceable there should be enforceable in another Contracting State,¹¹² it does not deem measures taken in one Contracting State automatically valid in other Contracting States.¹¹³ The Convention does, however, state that “measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States”¹¹⁴ and offers only a restricted list of cases where recognition might be withheld.¹¹⁵ Those reflect the regular recognition requirements of jurisdiction,¹¹⁶ due process,¹¹⁷ and public policy.¹¹⁸ The Convention also allows refusal of recognition in cases of non-compliance with the procedure designated by it for placement in care facilities in another Contracting State.¹¹⁹ Finally, the Convention withholds recognition in the event that there is a later measure, worthy of recognition under the Convention, that was created by a non-Contracting State that had jurisdiction over the matter.¹²⁰

The Convention does not dictate the procedure of enforcement in the Contracting State,¹²¹ but leaves it to the local procedure of the state.¹²² At the same time, the Convention requires that it shall be “simple and rapid”,¹²³ and withheld only based on the aforementioned limited list of grounds.¹²⁴ No review of the merits of the measure itself¹²⁵ or the finding of facts¹²⁶ is allowed as part of the recognition and enforcement process. Following recognition and enforcement, the measure is to be enforced as if it had been made by the authorities of the enforcing state.¹²⁷

4. Cooperation

Alongside the rules the Convention sets for jurisdiction, choice of law and recognition, the Convention also follows the Children’s Convention and establishes a mechanism for cooperation between Contracting States.¹²⁸ According to this mechanism, each Contracting State must designate a Central Authority that will handle duties resulting from the Convention.¹²⁹ Each Central Authority is responsible for providing information regarding protective measures available under its local law, as well as relevant services available in the jurisdiction.¹³⁰

5. Evaluation and real-life effect

Of the pressing questions of cross-border protection of adults, the Convention seems to solve most: it creates clear (and reasonable) rules for jurisdiction, choice of law and recognition. The Convention further creates a system for cross-border cooperation through Central Authorities and tasks them with providing information regarding local mechanisms, thus offering support for courts tasked with deciphering foreign protective measures. Finally, the Convention also caters for the recognition and enforcement of protective measures taken in one Contracting State in other Contracting States, thus ensuring more seamless operation and appropriate supervision. In this regard, the Convention does fulfil its goal of protecting adults.

However, sadly, despite the importance of the subject matter and serious efforts by the Permanent Bureau of the Hague Conference,¹³¹ only 20 countries have signed or acceded to it, all European.¹³² Surprisingly, even countries that are often cited as pioneer protectors of people with disabilities, such as Canada, have not yet signed, or become a Party to, the Convention. Moreover, only 15 States have become Parties to the Convention.¹³³ This number renders the Convention far less effective than desired, as most adults are likely to live in non-Contracting States.

This situation is surprising. It is also troubling. Indeed, the Convention is not perfect. Not least because it was drafted at a rather early stage in the revolution regarding the rights of people with disabilities. Still, it is difficult to explain the low signing rate of the Convention, particularly when considering the fact that the UN’s CRPD is seven years younger. Interestingly, while the HCCH Adults Convention suffers from a very low joining rate, the CRPD is famous for having “the highest number of signatories in history to a UN Convention on its opening day”¹³⁴ and nowadays has 188 State Parties.¹³⁵

None of the HCCH Adult Convention’s shortcomings seem to explain its low number of Parties. Nonetheless, it is possible that addressing these shortcomings may create momentum that might, together with other efforts, not only lead to a more comprehensive and helpful arrangement but also persuade more countries to sign.

E. The way forward

In the absence of sufficient cross-border protection of adults with mental, physical or cognitive disabilities, they are faced with two options: either be confined to their local jurisdiction with no way to securely travel the world; or cross borders at the risk of having their protective measures disregarded, misinterpreted or changed by a foreign jurisdiction.¹³⁶ Both options are highly unsatisfactory and clash with modern life. The status quo, in addition to burdening individuals, burdens authorities and states that must reassess the legal standing of individuals repeatedly.

More importantly, both options seem to clash with Article 12 of the UN CRPD, which establishes the duty of its Contracting States to allow people with disabilities equal enjoyment of legal capacity. The current regulation of cross-border capacity for people with disabilities, in national conflicts rules, leaves much to be desired. It might be argued that signatories of the CRPD are in breach of the duties they undertook. Hence, if not for moral reasons, State Parties to the CRPD are obligated to address the cross-border protection of adults so as to comply with the duties they have undertaken. This includes, beyond Article 12, also the duty under Article 18 to allow liberty of movement, the duty under Articles 32 and 37 regarding international collaboration, as well as, duties such as the protection of freedom and privacy (when a limited measure is replaced with a more intrusive one)¹³⁷ and the integrity of the person and the right to health (when medical instructions are disregarded).¹³⁸ There are several ways in which compliance with the CRPD can be achieved in addition to becoming a Party to the HCCH Adults Convention.

1. Creating sufficient local rules

Countries might solve the problem of insufficient protection of people with disabilities by carefully legislating their own rules for jurisdiction, choice of law, and foreign judgments and administrative actions. However, this is no easy task. Countries are likely to seek foreign inspiration to learn from others and to create mechanisms that would correlate, align, and be respected elsewhere. While the Convention has only 15 State Parties, it is nonetheless the most widely accepted mechanism dealing with the cross-border protection of adults, as most national mechanisms only apply in the jurisdiction legislating them. Therefore, though the application of the Convention can be improved (as discussed in the next section), it is still a good source of inspiration and imitation for national legislation.

Indeed, England and Wales is an example of a jurisdiction aligning its legislation with the Convention: the UK is a Party to the Convention, but only extended its territorial scope to Scotland. Yet schedule 3 of the Mental Capacity Act 2005, which applies in England and Wales, is closely based on the Convention, incorporating it practically verbatim.¹³⁹ So while England and Wales is not a party to the Convention per se, it still applies a very similar set of rules in all cases brought to its courts, regardless of whether the country of origin is a Contracting State to the Convention.

While this solution seems promising – as it affords the benefits of the Convention while keeping legislative independence – it does come at a cost. Although a country that chooses this solution will give the protection of the Convention to those who appear before its courts, it cannot provide the same protection to its residents who lawfully entered into a local protective measure when they appear before the courts of a Contracting State, as these courts are likely not to apply the Convention to measures of protection from a non-Contracting State. Thus, this country might not fulfil its duty towards its adults because it will only provide them with partial, very limited, protection and subject them to the uncertainties and complexities of the conflicts of law regulation abroad, including in Contracting States.

Moreover, non-Contracting States are excluded from various cooperation rules in the Convention, particularly those pertaining to jurisdiction.¹⁴⁰ For example, a non-Contracting State might not be seen as having jurisdiction regarding an adult who had his habitual residence in a Contracting State prior to moving to the non-Contracting State.¹⁴¹

2. Joining (and improving) the convention and its operation

The Convention is the broadest-reaching arrangement available for the protection of adults, and the Special Commission on the practical operation of the Convention recommended continuing the endeavours to encourage more states to join the Convention.¹⁴² Merely joining the Convention might not be enough to fulfil the duties set forth in the CRPD. Improving the practical operation of the Convention might persuade new countries to become Parties to it, thus making it more effective in ensuring and stabilising the cross-border protection of adults.

Some issues can be and are fixed through interpretive and explanatory notes.¹⁴³ Importantly, the Council on General Affairs and Policy (CGAP) of the Hague Conference in 2023 by consensus endorsed the Conclusions and Recommendations of the Review Special Commission on the Convention in November 2022.¹⁴⁴ The Review Special Commission on the Convention had given consideration to some suggestions for amendments to the Convention without approving any of them and left the decision on the matter to CGAP in 2023.¹⁴⁵ CGAP decided that proposed amendments to the Convention, including the addition of an REIO clause, were neither desirable nor necessary.¹⁴⁶ The terms of this Decision by CGAP means that amending the Convention is clearly impossible as the consensus needed to achieve this would not be found (given that the Members of the HCCH have said by consensus at CGAP that amending the Convention is “neither desirable nor necessary”). CGAP instead is focusing on uniform interpretation and application of the Convention by encouraging the development of a Practical Handbook on the Operation of the Convention to be agreed no later than CGAP in 2024.¹⁴⁷ To the extent possible, the following propositions should be considered for incorporation in that Handbook or in future Guides to Good Practice. To the extent possible, national legislation should also strive to better deal with these issues (eg, require registration of private mandates, as discussed below).¹⁴⁸

(a) Private (and other) mandates

The Convention addresses protective measures prescribed by courts and other public authorities. However, in many cases, protective measures are created privately and not finalised through official authorities. One of the most common ways to plan for old age is using powers of attorney and, when possible, DPAs. While the Israeli DPA must be registered with the Administrator General’s office to be valid and enforceable, in many jurisdictions (eg, Germany¹⁴⁹) no such requirement exists. Such measures, which are highly prevalent worldwide, and are discussed in the Convention,¹⁵⁰ are nonetheless insufficiently covered. Firstly, it has been argued that while other measures, done by court decisions or administrative acts, are exempt from legalisation under the Convention,¹⁵¹ private measures are not.¹⁵² Moreover, these measures do not partake in the recognition and enforcement mechanism of the Convention. Instead, the Convention deems that such measures that were validly created according to the habitual residence of the adult,¹⁵³ should be accepted as valid in all other Contracting States.¹⁵⁴ However, it is unclear whether this is enough to have the powers vested in appointed representatives recognised by authorities and individuals in other countries.¹⁵⁵

The Special Commission on the practical operation of the Convention noted that while advance directives fall within the general scope of the Convention and are important tools in ensuring the exercise of the adult’s autonomy, the decision on the compliance of such measures with the Convention is to be made on a case-by-case basis.¹⁵⁶ Needless to say, this situation is unsatisfactory, as it sentences these central and vital measures to uncertainty and legal complexity, which the Convention otherwise tries to avoid. This comprises a gaping hole in the actual protection provided to adults.¹⁵⁷

Moreover, some protective measures are not even private but rather automatic, ex lege. That is the case in Switzerland, for example, where in the absence of a mandate dictating otherwise, adults who are in need of protection will automatically be represented by their spouses with respect to certain everyday financial matters¹⁵⁸ and medical decisions.¹⁵⁹ Similar arrangements exist in other civil law countries such as Austria (where spouses are next in line to represent following parents and adult children)¹⁶⁰ and the Czech Republic.¹⁶¹ In all of these jurisdictions, the ex lege representation is automatic. It enters into force with neither a court order nor an administrative act (pursuant to Article 3 of the Convention), nor an act of the adult (as per Article 15). Therefore, the Convention does not apply to such arrangements, leaving the adults using them unprotected in cross-border situations.¹⁶² Currently, and following the recommendation of the Special Commission on the practical operation of the Convention, “competent authorities will give effect to ex lege representation in accordance with their own law, including, where appropriate, their rules of private international law,”¹⁶³ which again deprives those measures of the benefits of clarity and stability.

Naturally, for the Convention to give sufficient protection, its scope must be broadened to recognise and fully include private and ex lege protective measures. While recognising such measures is more challenging and less straightforward than recognising a court decision or an administrative act, it is still doable. The greater challenge regards private mandates, due to their individualistic contents and details, whereby the scope and nature of the appointment as well as the identity of the appointee might vary greatly between cases. However, if such measures were to be filed with an official agency, as is the case in Israel, then they would retain their flexible and personal nature while no longer being private to the extent that they fall out of the scope of the Convention. This solution can be achieved without changing the Convention, though it would entail changes in the laws of Contracting States that would have to allow, or even require, such filings. The filing could be conducted with minimal interference with the privacy of the adult (after all, a power of attorney is never completely private upon entering into force, as it must be presented to third parties and possibly courts). However, demanding filing with an agency will present a practical and financial burden to the individual states that will have to file the documents and provide information (and possibly a stamp of approval) to other jurisdictions inquiring about them.¹⁶⁴

The Convention requires of Contracting States to designate Central Authorities to discharge the duties imposed by the Convention.¹⁶⁵ Cooperation through Central Authorities that inform courts in other jurisdictions of the details and meanings of local laws and protective measures is also key for dealing with ex lege measures. These agencies could issue documents and information regarding ex lege measures, allowing such measures to be recognised in cases where the choice of law rule of the Convention identifies the law creating them to be applicable to the case (and possibly pointing out and dealing with cases in which it does not).¹⁶⁶ Hence, incorporating these measures into the Convention would not call for much more than a smart interpretation of the Convention that can be offered in Good Practice rules (to include ex lege appointments within its scope as other public mandates) and some adjustments within the legislation or practice of Contracting States (for private mandates).

(b) Medical instructions

The discussion of medical instructions in the Convention reflects an imperfect compromise that the drafters reached.¹⁶⁷ Consequently, the recognition of medical instructions might be hindered in several ways. First, through the inconsistent recognition of private mandates, as discussed above, since many such instructions are given through power of attorney or other private tools. Second, through the explicit exclusion of “public measures of a general nature in matters of health” (eg, duty to vaccinate)¹⁶⁸ from the scope of the Convention.¹⁶⁹ Third, through the application of local mandatory rules (which might be relevant, eg, to instructions to withhold life-saving treatments)¹⁷⁰ or through the public policy exception (which might be applicable, eg, to instructions regarding medically-assisted death).¹⁷¹ This reality is particularly problematic, given that much of what people seek to regulate is their medical caretaking and end-of-life management.

The first limitation is not cumbersome and could be solved by cementing private mandates through Central Authorities, as mentioned above. However, the latter two limitations are more challenging. In the rare case in which the adult seeks to uphold a specific public norm, that norm could be directly incorporated into advanced instructions or inferred and incorporated through interpretation in the individual case. The concern arises when an adult expresses desires that were legal in her habitual residence but contradict the public norms of the residence that she later acquires, especially when this acquisition was not through her active choice. In such cases, the appointment of a representative and her scope of responsibility might be recognised but not effective. Indeed, the representative might be unable to execute the adult’s wishes if they entail treatments that are debated due to special risks or ethical concerns in the particular jurisdiction, even if they are widely accepted elsewhere. Importantly, some of the most profound wishes and preferences dealing with the most sensitive matters might fall into this category, left uncovered by the Convention and likely unenforceable.

Consider, for example, the case of a woman suffering from a medical issue that might leave her with diminished mental or physical capacity. Despite her medical situation, this woman is naturally entitled to have physical relationships and make her own parenting decisions. Therefore, she might instruct that if she can no longer care for herself, her appointed representative will ensure that she is given contraceptives or, should the need arise, an abortion. Naturally, should this woman travel to a country where such medication and procedures are forbidden, she will, like any other woman in this jurisdiction, be barred from accessing these tools. However, in comparison to other women, she is likely to be more limited in her ability to travel to a place where these tools are available to her. The same would be true for euthanasia, genetic manipulations, stem cell therapy and the like.

Theoretical and practical constraints deem this situation almost inevitable. However, an autonomy-respecting outlook and interpretation might be of assistance. While the Convention does not, nor could or should, subject signatories to the medico-legal outlook of other countries, it likely should induce them to do as much as possible to respect the autonomy of the adults. That is to say, the Convention should be interpreted as expecting its Contracting States to make every effort to comply with the adults’ wishes, including, when possible, requiring the appointee to make necessary arrangements for the adult to receive desired medical treatment in a jurisdiction where it is available. This expectation holds true especially in cases where the adult has or was moved to a new habitual residence, and the desired treatment was available in the adult’s previous habitual residence.¹⁷²

(c) Simple and rapid recognition and enforcement

Last, but most important, is the issue of recognition and enforcement. Undoubtedly, it is important to clearly set jurisdiction and choice of law rules for the benefit of jurisdictions taking action in a particular matter. But at the heart of any cross-border arrangement, and much of the motivation for compliance with jurisdiction and choice of law rules, is the acceptance of legal actions of one jurisdiction in other jurisdictions. Clearly, the cross-border protection of adults hinges on the assurance of recognition and enforcement of protective measures in other jurisdictions.

The Convention dictates that measures taken in one Contracting State “shall be recognised by operation of law in all other Contracting States,”¹⁷³ and if contested will prevail unless they are made without jurisdiction or they contradict local public policy or later measures that may be recognised.¹⁷⁴ If recognition is requested the procedures are those of the recognising state.¹⁷⁵ As for enforcement, the Convention dictates that the procedure shall be “simple and rapid”,¹⁷⁶ and that measures taken in one Contracting State will be declared enforceable or registered for enforcement in other Contracting States upon the request of an interested party, according to the procedure provided in the law of the requested state.¹⁷⁷

To reach desirable outcomes it would be advisable to specify the details of what constitutes a “simple and rapid” procedure,¹⁷⁸ possibly along the lines of what is done in the Hague Convention on the Civil Aspects of International Child Abduction of 1980.¹⁷⁹ Such elaboration of what constitutes a “simple and rapid procedure” should be done in the Practical Handbook and/or in a future Guide to Good Practice.

Another way in which simple and rapid enforcement (and recognition) could be promoted is through smart use of the certificates regulated in Article 38 of the Convention, which indicates the capacity in which that person is entitled to act and the powers conferred. Firstly, this would preferably entail standardising the procedure for the issuance of such certificates, currently left to the individual states, hence allowing more reliance on such certificates.¹⁸⁰ Moreover, such certificates should be mandatory and issued automatically in every case where a public authority subjects an adult to a protective measure. Ideally, such a certificate would detail the reason for assuming jurisdiction and its extent (to the body, to property, etc.), the details of the measure taken (what powers were taken away from the adult, if any; what powers were given and to whom; etc.).¹⁸¹ This would help overcome the challenge of “translating” foreign arrangements and promote a more seamless transference of protective measures to other jurisdictions. Finally, this might also help solve the current situation under the Convention, which is currently understood as operating an “on/off” system only.¹⁸² Despite their gravity, these outcomes can be reached through Guides to Good Practice without any changes to the Convention itself.

While measures made in accordance with the jurisdiction and choice of law rules of the Convention, which do not clash with public policy norms or later valid measures, would likely be recognised in Contracting States, this is not guaranteed. The main advantage the Convention presents is the promise for a simple and rapid procedure – the details of which are currently unclear – and the hope that exceptions to recognition and enforcement of foreign measures will be rare.

In its report, the SC “encouraged States to consider implementing legislation providing for stipulated time frames, the use of specialised judges or registrars and the concentration of jurisdiction for procedures in certain courts, among others.”¹⁸³ While this is a significant step in the right direction, and despite the difficulty in demanding more of Contracting States, setting a specific acceptable duration for the procedure and possibly making some suggestions towards limiting the complexity of the procedure through a best practice guide seem advisable.

(d) Party autonomy

Legal capacity used to be a binary matter: either one is capacitated and enjoys full participation and rights, or she is not and is represented and controlled by others. The revolution created by the CRPD breaks this dichotomy and re-envisions people with mental, physical and cognitive disabilities as full members of society, with all associated rights, that deserve protection but not paternalism.

The move from the binary understanding of capacity to the realm of protection is also a move from a matter of status to a more flexible and autonomous matter. As such, its protection in the cross-border realm no longer has to be subject to the traditional strict rules controlling personal status. On the level of connecting factor, the Convention moves from the realm of nationality to the more flexible habitual residence (though the reasons for this shift are somewhat different). But in order to fully address this change, it is pertinent that the Convention allows the adult to choose the law applicable to her matters – directly or through the choice of jurisdiction since applicable law follows jurisdiction under the Convention – thus reflecting her personal affiliations and affording her solutions that are better suited to her.¹⁸⁴ This notion was generally rejected by the Special Commission, which sufficed itself with the mechanisms that allow the transfer of jurisdiction (and consequently, applicable law), by the authorities of Contracting States and not by the adults themselves.¹⁸⁵

However, if indeed capacity is no longer a matter of status, it should be allowed more privatised and autonomous management by the adults themselves, that is nonetheless mindful of public interests. Since the private ordering of capacity is anyway allowed to some extent through various powers of attorney (DAP, CAP) and other private mandates, and since any choice of law would be subject to public policy and mandatory rules, affording choice to the adult and allowing her to indicate the law and jurisdiction to which she is mostly connected is not only theoretically sound but also practically possible and fitting. While changes to the Convention itself are foreclosed, Good Practice Guides (and/or the Practical Handbook) that would encourage state authorities to make a transfer of jurisdiction based on the adult’s views would promote this outcome. As the Review Special Commission noted,¹⁸⁶ the drafters of the Convention in Article 8(2)(d) expressly provided for the jurisdiction that an adult has “chosen in writing” to be one that jurisdiction can be transferred to.

3. Auxiliary necessary steps

Joining the Convention and working to improve it are two important steps towards properly protecting adults in cross-border situations. Alongside these, both Contracting and non-Contracting States, as well as regional bodies, should consider some additional initiatives.¹⁸⁷

(a) Rules applicable to cases outside the scope of the convention

First, the Convention does not entirely replace a country’s private international law rules in relation to adults. Those non-harmonised rules might be insufficient in their ability to accurately deal with modern protective measures, which are more complex and less common.¹⁸⁸ Obviously, if this is the case, then the rules should be revisited and updated to comply with the duties posed by the CRPD. This, as discussed above, is no easy feat.

Replacing the local rules with those of the Convention in relation to non-Contracting States where the Convention does not require a State to do so (eg in relation to recognition and enforcement of measures of protection from a non-Contracting State) would not only simplify the local law but also improve the protection given to adults. Indeed, this approach was adopted by Austria and Scotland¹⁸⁹ (both Contracting States), as well as England and Wales and the Netherlands¹⁹⁰ (where the Convention is not in force); other countries should consider doing the same.

(b) Consolidation of measures

Lastly, while legal creativity and the creation of a bespoke solution is very appealing and might promote the protection of autonomy and dignity, as well as financial and other interests, at the local level, it might be to the detriment of the adult (and her appointees) at the cross-border level. Therefore, countries might do well to revisit their protective schemes and consider them vis-à-vis those proposed in other jurisdictions – in terms of the general scheme, substantive details such as the extent of appointment, the matters included, and the oversight of the appointee, and even names. Clarification and unification of arrangements, where possible, might not only make life easier for authorities dealing with foreign measures and promote financial clarity and stability (when it comes to transactions and other actions done by appointees). It would also promote the understanding of those measures and their costs and benefits at both local and cross-border levels and help adults make better-suited and more informed decisions regarding their future.

F. Conclusion

So, take and use Thy work:

Amend what flaws may lurk,

[…]

Perfect the cup as planned!

Let age approve of youth, and death complete the same!¹⁹¹

Several trends converged to create a challenging junction: a changed perception of people with disabilities, an ageing population and a growing range of recognised disabilities; alongside a strengthened duty to protect human rights, including the autonomy and participation of people with disabilities.¹⁹² In conjunction, there is also a rise in global travel, including amongst people in need of various protective measures, as well as a growing trend of care-seeking migration. Jointly, these factors indicate the increasing urgency of cross-border protection of adults, which for many comprises a real-life struggle that must be addressed. Managing these struggles is a duty that countries cannot ignore.

While the Convention offers a first step towards addressing these challenges, presently, it is far from fully solving them. In the absence of a proper arrangement, adults and their representatives may be forced to conduct numerous lengthy and costly legal proceedings in multiple jurisdictions just to secure their rights – a procedure that is both unrealistic and unacceptable. Ultimately, this situation forces adults to stay in their home country and leave their assets there, or to travel at their own peril.

The legislators of the numerous CRPD Contracting States simply cannot accept such realities; not merely for the sake of decency and care for others (and possibly for their future selves), but also because the current situation breaches their duties under that Convention. Indeed, the CRPD obligates access to medical care and expression of choice regarding it, protection of property rights, participation in public life and freedom of movement. All of those are at risk when protective measures are ignored or given a different meaning and extent than they originally had in their country of origin. Consequently, countries must do more and better to protect adults. Joining the HCCH Adults Convention 2000, improving its implementation, interpretation and application, and improving local legislation outside of its required scope, as suggested in this article, are all necessary and relatively attainable steps towards fulfilling this duty.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 “Rabbi Ben Ezra”, in J Pettigrew (ed) Robert Browning: The Poems (1st vol, Yale University Press, 1981) 781.

2 In the legal sense. Though this might often be a result of lack of capacity in the legal sense. See R Frimston, “The 2000 Adult Protection Convention – Sleeping Beauty or Too Complex to Implement?” In J Thomas, R Gulati and B Koehler (eds), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar Publishing, 2020), 227, 227.

3 https://www.freebritney.net. Britney Spears was put under the conservatorship of her father in 2008, due to an alleged mental crisis. With time, some argued that the conservatorship was not protecting but rather overtaking Spears, that she was kept under a conservatorship that extended beyond the necessary time and scope, that the appointed conservator did not act in her best interest, and that medical and financial decisions were made regardless of her wishes and for the benefit of others. A Californian court terminated the conservatorship in November 2021. The Free Britney movement, composed mainly of the artist’s fans as well as human rights activists, was discussed in numerous news articles worldwide as well as a New York Times movie (“Framing Britney Spears,” 2021).

4 See eg V Bumbaca, “The Hague Convention on the Protection of Adults: Plea for and Practice of an ''Adult'' Approach” (2021/2022) 23 Yearbook of Private International Law 365, 371.

5 The wording of this definition is taken from the preamble of the Hague Convention on the Protection of Adults, 2000.

6 CF Goodey, “The Psychopolitics of learning and Disability in Seventeenth-Century Thought” in A Digby and D Wright (eds) From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities (Routledge, 1996) 93, 93–95. For a detailed discussion of historical trends in the treatment of people with mental disabilities, see SL Brakel and RS Rock (eds) The Mentally Disabled and the Law (University of Chicago Press, revised edition, 1971), Chapter 1.

7 In Roman Law see D. Lush, “Roman Origins of Modern Guardianship Law” in AK Dayton (ed) Comparative Perspectives on Adult Guardianship (Carolina Academic Press, 2014) 3, 6, 11. M Kaser, Roman Private Law (translated by R Dannenbring, University of South Africa, 13th edn, 1984) 84, clearly distinguishes between individuals with mental incapacity (“lunacy”) and financial irresponsibility (“prodigality”); the former were addressed by law from “quite early times” and have no legal personhood whatsoever, whereas the latter were recognised more recently and have full legal capacity but diminished capability to act financially, due to their exclusion from transactions.

8 PM Horstman, “Protective Services for the Elderly: The Limits of Parens Patriae” (1975) 40 Modern Law Review 215, 219–20. See also Lord Coke’s decision in the famous Beverley case, 4 Co. 123B, 76 Eng. Rep. 1118 (K.B. 1603), discussing the king’s protection of the property of the incapacitated person; American Bar Foundation, The Mentally Disabled and the Law (rev edn, 1971) 2–6.

9 Horstman, ibid at 220.

10 A Forrester, S Ozdural, A Muthukumaraswamy and A Carroll, “The Evolution of Mental Disorder as a Legal Category in England and Wales” (2008) 19 Journal of Forensic Psychiatry & Psychology 543, 544.

11 Even if, at least in some cases, in name only.

12 See eg CL Robertson, “Lunacy in England” (1881) 7 Journal of Psychological Medicine and Mental Pathology174, 179; DA Pinals and D Mossman, “Civil Commitment” in RL Cautin, SO Lilienfeld (eds) The Encyclopedia of Clinical Psychology (Wiley-Blackwell, 2015) 518, 519. See also Halsbury’s Laws of England §559 (vol 75, 2013) (Reference was made to this edition as the next, current one, omits this paragraph); Lunacy Act 1845 (8 & 9 Vict, c 100), eg, ss 40, 42, 46, which not only use the word “patient,” a novelty in itself, but they consider the medical and social welfare of the patients. See also CL Robertson, ibid, discussing the release from asylum of all but those not dangerous to themselves or others.

13 BB Swadron, Mental Retardation (National Institute on Mental Retardation, 1972) 1.

14 Declaration on the Rights of Mentally Retarded Persons, General Assembly resolution 2856 (XXVI) of 20 December 1971.

15 Ibid, Art 5.

16 PB Teaster, WC Schmidt Jr, EF Wood. SA Lawrence and MS Mendiondo, Public Guardianship: in the Best Interest of Incapacitated People? (Praeger, 2010) 10, n 9.

17 Ibid, page 3.

18 R Frimston, “The Cross-Border Protection of Adults: Hague 35 Non-Contracting States”, in R Frimston, AR Keene, C van Overdijk and AD Ward, The International Protection of Adults (Oxford University Press, 2015) paras 6.12–6.16.

19 Eg, Brazil, Iceland, Malta, the Netherlands, Norway, Portugal and Sweden. See ibid, at para 6.19.

20 Convention on the Rights of Persons with Disabilities, Dec 13, 2006, 2515.U.N.T.S 3.

21 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en.

22 CRPD Art 1.

23 AS Kanter and Y Tolub, “The Fight for Personhood. Legal Capacity and Equal Recognition Under Law for People with Disabilities in Israel and Beyond” (2017) 39 Cardozo Law Review 557, 571.

24 CRPD Art 12(4).

25 Council of Europe Committee of Ministers, Recommendation No R(99)4 on Principles Concerning the Legal Protection of Incapable Adults (Feb. 23, 1999), https://www.coe.int/t/dg3/healthbioethic/texts_and_documents/Rec(99)4E.pdf.

26 K Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond” (2012) 44 Columbia Human Rights Law Review 93, 141, n 212. Guardianship still exists for minor children. See https://www.alzheimer-europe.org/Policy/Country-comparisons/2010-Legal-capacity-and-proxy-decision-making/Sweden; H Tiberg, S Sterzel and P Cronhult, Swedish Law – A Survey (James Hurst transl, Juristförlaget, 1994) 385.

27 Glen, ibid 140–41. But see different definitions of these roles at Kantor and Tulob, supra n 23 at 598.

28 SFS 1949:381 Chapter 11 s 4 (god man) and s7 (förvaltare).

29 Tiberg et al, supra n 26 at 388.

30 T Fridström Montoya, “Supported Decision-Making in Swedish Law – Is the “Good Man” a Good or Bad Guy in Light of the CRPD?” (2019) Psychiatrie Verlag, available at https://psychiatrie-verlag.de/wp-content/uploads/2019/01/919-Fridström-Montoya-English-version.pdf, 3. At least formally, in some cases a god man might be appointed without consent (see 9).

31 Tiberg et al, supra n 26 at 388.

32 SFS 1949:381 Ch 11, s7.

33 Fridström Montoya, supra n 30 at 3.

34 Ibid, 3 & 7; Tiberg et al, supra n 26 at 387.

35 See, eg, R Dinerstein, E Grant Grewal and J Martinis, “Emerging International Trends and Practice in Guardianship Law for People with Disabilities” (2016) 22 Ilsa Journal of International and Comparative Law 435, 442–43.

36 Amendment no 18 of the Legal Capacity and Guardianship Act, 5722–1962 (11.4.2016, entry into force 11.10.2016).

37 Legal Capacity and Guardianship Act, 5722–1962, s33.

38 Ibid, Chapter 2A, s32A-32ZI.

39 Ibid, s67(b).

40 Ibid, s32.14(a).

41 Ibid, s32.17(a).

42 Ibid, s32B(b).

43 Ibid, s32B(a)-(b).

44 Ibid, s32J.

45 Ibid, s67(b).

46 Similar rules exist in Alberta (The Adult Guardianship and Trusteeship Act (AGTA) and The Personal Directives Act); Manitoba (The vulnerable persons living with mental disability act, S.M. 1993, c 29, C.C.S.M., c. V-90, s57(1)); Saskatchewan (The Adult guardianship and co-decision-making act, S.S. 2000 c. A-5.3); Yukon (Adult Protection and Decision Making Act, S.Y. 2003, c 21, Sched. A, s38 [Y.K. Act]).

47 Substitute Decisions Act, 1992, S.O. 1992, c 30, s22(3) (property) and s55(2) (personal care).

48 Substitute Decisions Act, s25(1) (property) and s45 (personal care). See also s57(2) of the Mental Health Act.

49 The act divides it into two: a CAP (ss7–14), and a Power of Attorney for Personal Care (ss46–53). See also AR Keene and J Marques de Souza, “Canada – Ontario”, in Frimston et al, supra n 18, para 32.30.

50 In matters of personal care – a person over the age of 16, see s44 of the Substitute Decisions Act, 1992.

51 Substitute Decisions Act, s46.

52 Ibid, s7(b).

53 See RW Howard, “Western retirees in Thailand: Motives, Experiences, Wellbeing, Assimilation and Future Needs” (2008) 28 Ageing and Society 145; A Hill, “Families Sending Relatives with Dementia to Thailand for Care” The Guardian (12.1.2020) available at https://www.theguardian.com/society/2020/jan/12/families-sending-relatives-with-dementia-to-thailand-for-care. See also the film Thailand's Last Resort (2020) directed by Melissa Fung and David Boyle, available at https://youtu.be/i7yeiO-UzoM. Finally, this phenomenon was also presented in popular culture in movies such as Best Exotic Marigold Hotel (2011) and its 2015 sequel.

54 Eg, I Doron, “Elder Guardianship Kaleidoscope – A Comparative Perspective” (2002) 16 International Journal of Law Policy and the Family 368.

55 R and T Odlöw, “Sweden” in Frimston et al, supra n 18, para 50.42.

56 For durable powers of attorney, see K Dayton, “The United States of America” in Frimston et al, supra n 18, at para 24.53; for health care decisions, see ibid para 24.70; for property-related measures, see ibid para 24.101. This is also at the inter-state (intra-US) level, as it has been held that the Full Faith and Credit clause of the US Constitution does not apply to protective measures, see ibid, para 24.100. The US does have some legislation on the matter, eg the 2007 Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) but it clearly deems, in Art 103 that a foreign order is not enforceable pursuant to the registration procedures under Art 4 of the Act, though a court in the United States may otherwise apply the Act as if the foreign country were an American state.

57 Mainly the Foreign Judgments Enforcement Act, 5718–1958.

58 Celia Wasserstein Fassberg, Private International Law (Nevo, 2013) 490 [Hebrew].

59 S77(b) of the Legal Capacity and Guardianship Act, 5722–1962.

60 S85(1) of the Substitute Decisions Act, 1992. The validity is subject to the law of the place where the power of attorney was executed, or the law where the grantor is domiciled or maintains their habitual residence.

61 S86(1) of the Substitute Decisions Act, 1992.

62 As such appointees do not have authorities comparable to those of guardians (hence are likely not subject to s86), and are not guardians, hence not subject to s85. Note that a power of attorney such as the Israeli DPA would be recognised, under s85.

63 S 86(4) of the Substitute Decisions Act, 1992.

64 S 86(4)(b)+(c): subs (b) does subject the measure to its foreign law, however subs (c) also subjects it to the Ontarian law, thus possibly altering its conditions.

65 Information given in an interview with Advocate Efrat Reich, a lawyer and social worker in the department for oversight over guardianships and alternative measures, February 9th 2022. Transcript on file with the author.

66 For examples of the many differences and intricacies see AD Ward, “Legal Protection of Adults – An International Comparison” (2017) 2017 Elder Law Journal 147.

67 As is demonstrated by the state-by-state discussion in Part 3 of Frimston et al supra n 18.

68 Another, related problem, is that of adaptation, see K Lipstein, “Conflict of Laws 1921–1971 the Way Ahead” (1972) 31 The Cambridge Law Journal 67, 81–83. While this further complication is possible and relevant to protective measures, it is not discussed here.

69 Legal Capacity and Guardianship Act s32F(c). These include, eg, giving substantial gifts or donations.

70 Ibid, s32F(d). These include, eg, some transactions in real-estate and pensions.

71 V Lipp and A Ward, “Germany” in Frimston et al, supra n 18, para 22.22. See also supra n 65.

72 Eg PMM Mostermans, “A New Hague Convention on the International Protection of Adults” (2000) 2 International Law FORUM du Droit International 10; E Clive, “The New Hague Convention on the Protection of Adults” (2000) II Yearbook of Private International Law 1, 2–3.

73 Clive, ibid, at 3–4.

74 Convention concernant l’interdiction et les mesures de protection analogues 1905.

75 Clive, supra n 72, at 2.

76 Eg, the Nordic Convention on Marriage, Adoption and Guardianship, 1931: League of Nations Treaty Series, vol 126, pp121, 150 and 155 and the Convention on Recognition and Enforcement of Foreign Judgments, 1861: League of Nations Treaty Series, vol 139, p165 in Nordic Countries. See also Allan Philip, “The Scandinavian Conventions on Private International Law” (1958) Recueil des Cours 16. Another example is the intra-US arrangement of the 2007 Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which applies in all but four (Florida, Kansas, Michigan and Texas) US states. An inter-state version of this act, the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPPA), was introduced but has been far less broadly accepted, see https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c.

77 P Lagarde, Protection of Adults Convention-Explanatory Report (The Hague Conference on Private International Law Permanent Bureau, new and revised edition, 2007) 39.

78 E Clive, “Report on Incapable and Other Vulnerable Adults” in Proceedings of the Special Commission of a Diplomatic Character of September-October 1999 – Protection of Adults (1999) 10, 10–11; Lagarde, ibid, at 40–41.

79 D Hill, “The Hague Convention on the International Protection of Adults” (2009) 58 International and Comparative Law Quarterly, 469, 469–70. Replacing and improving on the rather unsuccessful Convention du 17 juillet 1905 concernant l'interdiction et les mesures de protection analogues.

80 Adults for the purpose of the Convention are people who are 18 years old or older, even if they were younger than this age at the time the measures were taken in relation to them, according to Art 2 of the Convention. This provision is particularly required because in some Contracting States, such measures can be taken from a younger age. For example, in the UK, the minimum age is 16; see Mental Capacity Act, 2005 s2(5).

81 The preamble to the Convention.

82 J Long, “Rethinking Vulnerable Adults’ Protection in the light of the 2000 Hague Convention” (2013) 27 International Journal of Law, Policy and the Family 51, 61–64.

83 Lagarde, supra n 77 at 41.

84 Art 1 of the Convention.

85 Lagarde, supra n 77 at 42.

86 Art 5. See also M Álvarez Torné, “Current Issues in the Protection of Adults from the Perspective of Private International Law” (2016) 32 Revista Electrónica de Estudios Internacionales 1, 8; M Drventic, “The Protection of Adults in the European Union” (2019) 3 ECLIC (EU and Comparative Law Issues and Challenges) 803, 816–19. The Convention also addresses, in Art 6, the situation of people who are internationally displaced so that their habitual residence cannot be established, giving jurisdiction to the country in which the person is present.

87 Art 7(1).

88 Art 9.

89 Ibid.

90 Art 10(1).

91 Art 10(3).

92 Art 10(2).

93 See, eg, AR Keene, “Hague 35: Introduction and Background”, in Frimston et al supra n 18, para 7.17.

94 This works well with the premise of the Convention, which assumes fewer guardians and more supporters and representatives. But while habitual residence is clearly a matter of fact (see, eg, Frimston, supra n 2 at 230), it is nonetheless difficult to ascertain whether an adult protected by the Convention changed her habitual residence following a move from one state to another (ibid). The Special Commission, in its 15 November 2022 Conclusions & Recommendations (available at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf), also noted that habitual residence is a matter of fact (page 2, point 10), however it did not give guidance as to deciding whether a change of habitual residence had occurred, nor did it suggest a default rule for cases where no or both jurisdictions see themselves as having jurisdiction. Instead, the question was left in the hands of the authorities of the new habitual residence, based on information pertinent to the determination of habitual residence shared between jurisdictions (page 2, points 10–11).

95 Eg, Israel; see Legal Capacity and Guardianship Act, s 80.

96 Art 5.

97 Lagarde, supra n 77 at 42.

98 Art 13.

99 This too was inspired by the Children’s Convention. See Lagarde, supra n 77 at 70.

100 Lord Collins of Mapesbury and J Harris (eds), Dicey, Morris and Collins on the Conflict of Laws (Sweet and Maxwell, 16th edn, 2022) paras R19–001 and R19–068.

101 Ibid, para 22–016.

102 According to Art 16, in cases where powers of representation are withdrawn or modified by measures taken by an authority that has jurisdiction under the Convention, this authority will likely have a sufficient connection to the person. Moreover, the changes will be made only when necessary to guarantee the protection of the adult or her property, but they will be made while taking into account the adult’s personal law as prescribed by Art 15 (that is: habitual residence or another law chosen by the adult and having a sufficient connection). See also AR Keene, “Hague 35: Private Mandates and Other Anticipatory Measures” in Frimston et al, supra n 18, paras 9.36–9.37. Note, however, that this article de facto invites an intervention and evaluation of foreign procedures and choices, thus infringing on autonomy and jurisdiction. See Hill, supra n 79 at 474.

103 K Karjalainen, “Fragility of Cross-Border Adult Protection: The Difficult Interplay of Private International Law with Substantive Law” (2018/2019) 20 Yearbook of Private International Law 439, 445.

104 Art 13(2).

105 Art 14.

106 Art 15.

107 Art 17.

108 Art 19. See also, eg, Art 21 of the Children’s Convention. The same is true for the EU’s Rome Regulations; see Art 20 of Rome I, Art 24 of Rome II, Art 11 of Rome III. The situation is somewhat different in Art 34 of Rome IV where limited renvoi is allowed.

109 Art 20.

110 Art 21.

111 Lagarde, supra n 77 at 41.

112 Art 25(1).

113 Art 22(1) only refers to automatic recognition not automatic enforcement.

114 Art 22(1).

115 Art 22(2).

116 Art 22(2)(a).

117 Art 22(2)(b).

118 Art 22(2)(c).

119 Art 22(2)(e).

120 Art 22(2)(d).

121 Lagarde, supra n 77 at 81.

122 Art 25(1).

123 Art 25(2).

124 Art 25(3).

125 Art 26.

126 Art 24.

127 Art 27.

128 Lagarde, supra n 77 at 41.

129 Art 28.

130 Art 29(2). Note that while cooperation might rely on reciprocity, the Convention does not stipulate so.

131 As reflected by the many documents, as well as the Review Special Commission in 2022 organised by the HCCH in an attempt to promote and strengthen the Convention and its workings. See details on the Special Commission page on the HCCH website: https://www.hcch.net/en/publications-and-studies/details4/?pid=6795&dtid=57. See also European Law Institute, The Protection of Adults in International Situations 10 (2020), available at: https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI_Protection_of_Adults_in_International_Situations.pdf.

132 See the status chart for the Convention on the HCCH website: https://www.hcch.net/en/instruments/conventions/status-table/?cid=71.

133 Ibid. The signatories are: Austria, Belgium, Cyprus, Czech Republic, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Switzerland, and the United Kingdom. Note, however, that it is not yet in force in Italy, Ireland, Luxembourg, the Netherlands, Poland, and most of the United Kingdom (all but Scotland). The Netherlands, like England and Wales apply the Convention though they have not ratified it. The Convention is in force in Estonia which is not a signatory but rather acceded to the Convention.

134 See https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.

135 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en.

136 The Protection of Adults in International Situations, supra n 131 at 11–12.

137 Arts 14 and 22.

138 Arts 17 and 25.

139 C van Overdijk, “England and Wales” in Frimston et al supra n 18 at 11.99.

140 Ibid, at para 11.100.

141 As Art 5(2) only discusses Contracting States.

142 SC 2000 Protection of Adults, Conclusions and Recommendations para 1 (15 November 2022) available at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf (hereinafter: SC Recommendations). It seems this call is falling on willing ears within the EU, where many echo it, including importantly, the European Commission which, has for years promoted the ratification of the Convention by all Member States. According to the proposed regulation (2023/0169 (COD) Proposal for a Regulation of the European Parliament and of the Council on Applicable Recognition and Enforcement of Measures and Cooperation in Matters Relating to the Protection of Adults (2 June 2023), available at: https://data.consilium.europa.eu/doc/document/ST-10108-2023-INIT/en/pdf), all member states would be obliged to be or become (within two years) parties to the Convention. See Pietro Franzina, “European Commission Proposes Decision and Regulation on the Protection of Adults” EPIL (1 June 2023), available at: https://eapil.org/2023/06/01/european-commission-proposes-decision-and-regulation-on-the-protection-of-adults/ and the EC press release available here: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2955. For part of the background leading to this recommendation see S Ousta Doerfel, “Adults without Borders – European Parliament Approves Resolution to Harmonise Measures to Protect Vulnerable Adults” (2017) Elder Law Journal 231, 233–35.

143 Eg, regarding the term “habitual residence,” see ‘Conclusions and Recommendations’ ibid, para 2, or the management of intertemporal issues stemming from a change in habitual residence, see ibid, paras 18–22.

144 CGAP 2023 Conclusions & Decisions (March 2023), paras 30–31, available at https://assets.hcch.net/docs/5f9999b9-09a3-44a7-863d-1dddd4f9c6b8.pdf.

145 Supra n 142 at paras 67–76. The Review Special Commission considered Prel Doc No 12 of October 2022 (revised version) on the possible amendments to the 2000 Protection of Adults Convention, see https://assets.hcch.net/docs/4db77314-1b1c-4723-b514-47aa843822c8.pdf.

146 Supra n 144 at para 33.

147 Supra n 144 at para 31.

148 Text infra preceding n 164.

149 BGB s 1901a-c.

150 Art 15. But see SC 2000 Protection of Adults, Advance Directives within the Scope of the 2000 Protection of Adults Convention (Prel Doc No 6 of April 2022) paras 34–38, available at https://assets.hcch.net/docs/a7ffa46d-a1bd-4a75-a1a6-fd939da97e60.pdf.

151 Art 41.

152 A Ruck Keen, “Hague 35: Private Mandates and Other Anticipatory Measures” in Frimston et al supra n 18 at para 9.24.

153 Unless another choice of law was made, according to Art 15(2).

154 Art 15(1). See also Ruck, supra n 152, at para 9.28.

155 Ruck, ibid para 9.23. Ruck also notes that the certificate of capacity mechanism, discussed in Art 38, is irrelevant for private mandates.

156 SC Recommendations, supra n 142 at paras 24–25; Prel Doc No 6, supra n 150 at para 51.

157 Though this was not the view of the Review Special Commission (supra n 142 paras 72–73) or CGAP (supra n 144 at para 33).

158 Swiss Civil Code, Art 374; R Aebi-Müller, M Magliana, and A Ward, 'Switzerland' in Frimston et al supra n 18, para 23.25.

159 Swiss Civil Code, Art 378(2); Aebi-Müller et al, ibid, at para 23.25.

160 s 284c(1) ABGB; A Perscha and R Frimston, “Austria” in Frimston et al supra n 18, paras 17.35–17.39.

161 J Mrazek and A Ward, “Czech Republic” in Frimston et al ibid para 18.13.

162 Lagarde, supra n 77 at para 90.

163 SC Recommendations, supra n 142 at para 22. See also SC 2000 Protection of Adults, Application of the 2000 Protection of Adults Convention to ex lege representation (Prel Doc No 5 of October 2022 (revised version)), available at https://assets.hcch.net/docs/3d623cf4-2322-4b9e-9d9c-52df85eec95f.pdf.

164 This proposed solution would also fit the instructions of the SC, see SC Recommendations, supra n 142 at para 42, regarding the use of Central Authorities for cooperation and the aversion, in para 70, to adding a designated rule for ex lege representation.

165 Art 28.

166 This issue is currently not addressed by the Convention and is unlikely to be addressed by it, but may be promoted by supplementary tools, particularly those of the EU. See C Fountoulakis, G Mäsch, E Bargelli, P Franzina, and A Ward, Response of the European Law Institute to the European Commission's Public Consultation on the Initiative on the Cross-Border Protection of Vulnerable Adults (European Law Institute January 9, 2023) 17–18.

167 Lagarde, supra n 77 at 52.

168 Ibid at 53.

169 Art 4(1)(f).

170 Art 20.

171 Ibid, Art 22. See also AR Fagan, “An Analysis of the Convention on the International Protection of Adults” (2002) 10 Elder Law Journal 329, 343, 348–49.

172 Eg, in cases where an adult migrated or was sent to a country where care is more affordable, as discussed above surrounding and in n 53.

173 Art 22(1).

174 Art 22(2). For more detail see supra D3.

175 Art 23.

176 Art 25(2).

177 Art 25(1).

178 See similarly, Frimston, supra n 2 at 234.

179 See particularly Arts 9 and 11 of that Convention and guidance on avoiding delays, see Prel Doc No 12 of August 2023 – Delays in return process under the 1980 Child Abduction Convention, available at https://assets.hcch.net/docs/f672f082-bed0-4679-9840-ad857d0d9411.pdf.

180 P Franzina and J Long, “The Protection of Vulnerable Adults in EU Member States” in C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 106, 161.

181 Along the lines of Arts 5 and 7 of Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters. See also C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 4. Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2016/581388/EPRS_STU(2016)581388_EN.pdf

182 I Curry-Sumner, “Vulnerable Adults in Europe” in C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 18, 58.

183 SC Recommendations, supra n 142 at para 32.

184 Similar suggestions were made by Frimston, supra n 2 at 232–33, though based on more practical and less theoretical grounds.

185 Special Commission Conclusions & Recommendations, supra n 142 at paras 13–14.

186 Ibid.

187 See, eg, the two-tier approach proposed in The Protection of Adults in International Situations, supra n 131 at 28–45.

188 See discussion of Sweden, Canada and Israel above. For a detailed, state-by-state discussion of the insufficiency of the rules in large parts of the world, see Part III in Frimston et al, supra n 18.

189 R Frimston, “The Cross-Border Protection of Adults: Hague 35 Non-Contracting States”, in Frimston et al supra n 18, para 6.09. For the Netherlands, see ibid para 6.08.

190 Ibid para 6.08.

191 “Rabbi Ben Ezra” supra n 1.

192 The Protection of Adults in International Situations, supra n 131 at 8–9 and 11.