The Hague Convention on the International Protection of Adults

Introduction

Case 1:

A guardian (person entrusted with protection of the adult’s person or property) has been appointed for a Turkish adult in Germany. The guardian is responsible for matters concerning health care, residence, and property. The Turkish adult leaves Germany without the guardian knowing, and is picked up by police in France.

Case 2:

An adult person who was placed under guardianship is the owner of property in Scotland. His guardian wants to sell the ward’s property in Scotland. 

In times of increasing mobility, on the one hand, and demographic change, on the other hand, the topic of “vulnerable adults” is increasingly brought to the attention of the public.

More and more people, when reaching pension age, move to another country. Some of them, when growing older, will be in need of care. Others go to another country because they want to be cared for by relatives residing there, instead of living in a nursing home for the elderly. 

Often  in  such  cases,  ISS  Germany  is  a  contact  point  where  guardians,  relatives  or responsible authorities can turn to. Questions arise, such as e.g. who has the right to take action in the other country, whether a guardianship in one country will be maintained after moving to another country, and if so, what are the preconditions. Moreover, the question arises whether, and to what extent, national Guardianship Law will be applicable in the other country as well.

After consultation with all the persons involved in the home country as well as in the other country, answers to the most urgent questions can be given in the individual case. Each case is unique. There is no universally valid answer. Because up to now, there are no uniform international regulations concerning those cross-border cases. 

How those problems after crossing the border can be overcome, depends on the creativity of the individual guardian and/or of family members, on the one hand, and the cooperativeness and understanding on the part of State institutions, on the other hand.

The Hague Convention on International Protection of Adults puts an end to this uncertain situation  and  creates  a  comprehensive  protection  system.  It  will  enter  into  force  on  1st  January 2009. The Convention provides a uniform legal framework for international case constellations  concerning  vulnerable  persons  aged  18  years  and  older. The  Convention stipulates  the  competence  of  State  authorities  as  well  as  procedural  standards  for  the recognition and enforcement of decisions taken in another State, and facilitates the issuance of a certificate, which is internationally valid, for the person entrusted with protection of the adult’s  person  or  property.  Moreover,  the  system  of  inter-country  cooperation  is institutionalised by the Convention. 

Under the Convention, in the example of Case 1, the French authorities would take the   measures  of  protection  required  and  would  inform  accordingly  the  German  authorities - which are competent according to the Convention.  The measures of protection taken in France would remain in force until the German authorities have made a decision on further measures to be taken.

Whereas previously, here had not been any uniform rules on jurisdiction, the Convention provides that a State has jurisdiction, regardless of the nationality of the vulnerable adult, if the vulnerable adult’s focal point of life (“habitual residence”) is in that State. Concerning applicable law, the law of the State which has jurisdiction is applicable. However, there is an exception if the vulnerable adult has been picked up in another Contracting State. In that case, the authorities of that State can take measures of protection of a temporary character, for which that State’s own law is applicable. Those measures will lapse as soon as the State of “habitual residence” has taken action. 

As far as Case 2 is concerned, the person entrusted with protection of the adult’s person or property, pursuant to Article 38 of the Convention, can request the German authorities to issue a certificate which gives him the right to take action in Scotland. The certificate would have to be recognized in Scotland.

In order to ensure the effective functioning of a system of protection in actual practice, the Convention  stipulates  that  the  Contracting  States  have  to  designate Central  Authorities, which have to co-ordinate the cross-border action to be taken. The Central Authorities can have  recourse  to  the  experience  of  professional  agencies,  such  as  International  Social Service.

Although the need for such a convention is recognized by everyone, it has not entered into force yet: for many States, regulations on Child Protection have had priority. Recently, on 18th  September 2008, the Convention was ratified by France. With the accession of France, the required minimum number of Contracting States for the Convention has been reached. It will therefore enter into force on 1st  January 2009. At the beginning, the Convention will then be applicable  to  all  cross-border  case  constellations  between  the  Contracting  States  of France, the Federal Republic of Germany, and the U.K. - for the latter, however, it will apply only to the territory of Scotland.

The Convention, however, has a signal effect already now: at the level of public international law, work is being done at the moment to formulate a Recommendation which stipulates legal  provisions  for  the  States,  concerning  the  contents  and  minimum  standards  for “Continuing  Powers  of  Attorney”  and  “Advanced  Directives  for  Incapacity”.  Within  the framework of the discussions, reference is frequently made to the Hague Convention on the Protection of Adults.

Therefore it can be assumed that the accession of France will trigger a wave of accessions by  other  States,  and  that  the  Convention  on  the  Protection  of  Adults  will  be  accepted worldwide very soon. The (relevant) state of affairs concerning the Contracting States can be taken from the website of the Hague Conference on Private International Law, with the text of the Convention (www.hcch.net).

Ulrike Schwarz ,International Social Service, German Branch

(be published in NDV in October 2008)