ISS within Council of Europe initiatives
A brief overview of the Working Party on “Incapable Adults” of the Council of Europe:
Meeting 3-5 September 2008 in Strasbourg
In autumn 2006, the Committee of Experts on Family Law of the Council of Europe set up a Working Party to develop a new instrument for the protection of adults. The Working Party “Incapable Adults” of the Council of Europe is focusing on how to protect adults who, for various reasons, are temporarily or permanently incapacitated to act without aid from others. Its last Meeting took place in September 2008. It is made up of international experts from legal practice who, within the Working Party, act independently of the governments. International Social Service (ISS) has observer status with the Council of Europe. Because of its practical experience in the field of cross-border protection of adults, ISS was appointed to the Working Party as an observer without a right to vote. ISS German Branch (department VII of the German Association for Public and Private Welfare) traditionally represents the overall organisation of ISS in the Council of Europe.
The Working Party had its first meeting in September 2007 and has met three times since then. It drafted for the Council of Europe a Recommendation concerning “Continuing Powers of Attorney” and “Advance Directives for Incapacity”. Both instruments have in common that an adult person who is capable of making his own decisions can decide what shall happen to him or her in case of future inability to make decisions, not leaving it up to the State to decide on his behalf. The point of these instruments is to strengthen the right to self-determination of adults who are unable to make decisions. According to the Recommendation, an adult who is capable of making decisions would sign Continuing Powers of Attorney, which provide that in case of his or her future inability to decide, another person would be able to make legally binding decisions on his behalf. Likewise, a person who is capable of making decisions can sign “Advance Directives for Incapacity” to provide for the case that he or she would lose his or her ability to decide. Advance Directives, unlike Continuing Powers of Attorney, do not include any powers to act on behalf of the person, but only specific wishes and instructions for certain situations which would occur in case of loss of the person’s capacity to decide. A form of Advance Directive most commonly known in Germany is the Living Will.
The Recommendation is aimed to supplement the Council of Europe’s “Recommendation on Principles Concerning the Legal Protection of Incapable Adults” of 1999. It articulates principles to give the States a stimulus and guideline for the introduction or improvement of the above-mentioned instruments. The Recommendation is to be accompanied by an Explanatory Report, which explains each of the principles. The Recommendation is drafted in English and French.
In the course of discussions, ISS German Branch repeatedly stressed the importance of drafting a Recommendation for the States of Eastern Europe. In many of these States, the fact that incapable, vulnerable adults who are unable to make decisions nevertheless have a right to self-determination, is only gradually gaining public acceptance. Especially in these States, the Recommendation can serve as a guideline for the introduction of Continuing Powers of Attorney and Advance Directives in order to implement the right of vulnerable adults to self-determination.
Following the Working Party Meeting in May 2008, the Working Party forwarded a first Draft Recommendation as well as a raw version of the Explanatory Report to the Member States for information and for their comments. Moreover, both documents were published on the website of the Council of Europe with the possibility for anyone interested to make their comments. Both documents were focussing primarily on Continuing Powers of Attorney and included some first suggestions concerning principles and explanations on Advance Directives.
During the September Meeting 2008, the comments received were evaluated and discussed. The comments showed that especially the Explanatory Report is quite misunderstandable for those States to which the concept of “Continuing Powers of Attorney” and “Advance Directives” is still unknown territory.
As a result of the discussions, the Working Party supplemented the Explanatory Report with an explanation on the person who is authorized to exercise Continuing Powers of Attorney (who can take on this task?). Furthermore, the sentences were written more concisely to make the text more understandable for non-native speakers of English or French. Besides, case examples were included in the Explanatory Report (e.g. on the possible contents as well as the termination of Continuing Powers of Attorney) to illustrate the principles. In the Recommendation, as far as Continuing Powers of Attorney are concerned, the introduction of a state control system was suggested. Principles on revocation (Principle 6), certification, registration and notification (Principle 8) as well as control (Principle 12) were included in the Recommendation.
Moreover, the principles concerning Advance Directives for Incapacity were elaborated during the Meeting. Within the scope of the Recommendation, Advance Directives may include all areas of life, and are not restricted to the area of medical care.
The Working Party meets again from 3-5 December 2008 to elaborate the final version of the Explanatory Report. The current version of the Draft Recommendation, apart from editorial changes, together with the Explanatory Report, will be submitted to the Committee of Experts on Family Law in March 2009.
The current Draft Recommendation as well as the Explanatory Report will soon be accessible on the website of the Council of Europe (http://www.coe.int, click at: Legal Affairs/Family Law and Children’s Rights).
Ulrike Schwarz, International Social Service,German Branch
(be published in NDV in December 2008)