Strengthening the Right to Personal Autonomy and Protection of Vulnerable Adults: from Human Rights to Domestic and European legislation on Voluntary Measures

Abstract

This chapter analyzes the formation of domestic law and European law from the perspective of voluntary measures and the representation of persons whose personal faculties are impaired or insufficient. It assesses the instruments of the Council of Europe (CoE), especially Recommendation No (1999)4 and Recommendation No (2009)11, and Article 12 of the Convention on the Rights of Persons with Disabilities (UNCRPD). It also looks at domestic solutions and the way in which they reflect goals and objectives set at the international level. The Finnish Act on Continuing Powers of Attorney (2007) and the British Columbian Representation Agreement Act (2000) are used as illustrative case studies on how endorsing human rights can take different forms. The comparative notions employed in this chapter concern the question of who is able to carry out a voluntary measure and, thus, of how jurisdictions address impairment in existing decision-making capacity, which is one of the most intriguing questions relating to voluntary measures following the conclusion of the UNCRPD. Furthermore, the chapter notes the possibility of the European Union (EU) implementing measures in the area of law dealing with the protection of vulnerable adults and, in particular, in relation to voluntary measures. In this context, the chapter highlights the intertwined work of different international actors in the formation of laws.

The comparative legal analysis benefited in this chapter was conducted during a research visit at the British Columbia Law Institute and the Canadian Centre for Elder Law. I would like to thank Executive Director Kathleen Cunningham for guiding me in the right direction and for hosting me as a visiting scholar. The research visit was part of the multi-disciplinary research project entitled ‘Dementia or mild cognitive impairment’: a work in progress funded by the Academy of Finland under the framework of the EU’s ‘More Years, Better Lives’ (MYPL) initiative. Understanding of the UNCRPD presented in this article lies heavily on work I have conducted with Associate professor Marjo Ylhäinen (University of Eastern Finland) in the project. I would also like to thank the project coordinators: Louise Nygård (Karolinska Institutet, Sweden), Anna Mäki-Petäjä-Leinonen (University of Eastern Finland), Arlene Astell (Toronto Rehab Institute, Canada), Jennifer Boger (University of Waterloo, Canada) and Ann-Charlotte Nedlund (Linköping University, Sweden). All mistakes and misinterpretations are of course my own.

1 Introduction

One of the most important, and the most difficult, of the issues involved in adult protection matters is how to strike a balance between the right to personal autonomy, self-determination and protection. Domestic guardianship regimes based on Roman law have traditionally emphasized protection, especially the protection of family property.¹ Safeguarding the interest or the right to personal autonomy of the vulnerable adult himself or herself had been for many years a secondary goal. Adult protection was based on involuntary measures put in place by either a court or an authority.² Even today, legal systems take very different approaches from each other to promoting the personal autonomy and self-determination of adults who do not have full decision-making capacity—which is to say that as a result of an impairment or insufficiency in their personal faculties, they can no longer fully protect their interests. Nonetheless, we can observe a major paradigm shift—a changing mentality towards perceiving persons with impairments in decision-making capacity as actors and recognized members of society instead of as objects of protection. Many jurisdictions have renewed guardianship regimes with the aim of respecting as far as possible vulnerable individuals’ own personal autonomy and interests as far as possible, taking into account their individual circumstances.³

Domestic lawmakers have started to promote voluntary measures as a primary means of protecting vulnerable adults. They refer to measures put in place by individuals themselves with the purpose of ensuring the exercise of their own legal capacity, notwithstanding existing or future impairments of their own capacities.⁴ Voluntary measures offer an essential means of supporting capacity in the area of law concerning the protection of adults whose decision-making capacity has diminished as they contribute to protecting individuals’ personal autonomy and right to self-determination: in other words, a person’s ability to govern his or her life choices. Depending on the jurisdiction involved, these voluntary measures are referred to as, inter alia, private mandates, continuing powers of attorney (in Finnish edunvalvontavaltuutus, and in Swedish framtidsfulmakt), springing powers of attorney and advance directives.⁵

This chapter deals with domestic and European laws in relation to voluntary measures. It provides viewpoint on the interactions taking place simultaneously between actors operation on the international, regional, and domestic levels to improve rights of vulnerable adults. Involuntary measures as well as advance directives covering health care wishes or representation in health care matters are excluded from the scope of the chapter, along with various other issues.⁶ The chapter starts with an analysis of Recommendation No (1999)4 on principles concerning the legal protection of incapable adults, of Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity and of Article 12 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The chapter references domestic solutions and how they reflect goals and objectives being established at the international level. The Finnish Act on Continuing Powers of Attorney⁷ and the British Columbian Representation Agreement Act⁸ are used as illustrative examples on how endorsing human rights can take different forms. Comparative notions relating to these two legal systems focus on the question of how jurisdictions address an existing impairment of an adult’s decision-making capacity. The final part of the chapter offers de lege ferenda analysis concerning the role of the EU. In principle, the EU is bound by similar fundamental and human rights obligations as domestic legal systems that require supportive autonomy-orientated decision-making mechanisms. The EU has acceded to the UNCRPD,⁹ and the Charter of Fundamental Rights reflects the rights laid down in the European Convention on Human Rights (ECHR).¹⁰ However, the EU can only act to the extent that its competence allows it to do so, meaning that in principle EU actions in this area are limited to the cross-border protection of adults.

2 Vulnerable Adults as Fully Recognized Members of Society

Human rights have had an impact on, among other things, what can and cannot be accepted in the field of family law. Article 8 of the ECHR, which deals with the protection of family and private life, has had an important impact in this regard.¹¹ The development of domestic guardianship regimes and voluntary measures is also connected to the judgments handed down by the European Court of Human Rights (ECtHR) concerning Article 8 of the Convention.¹² However, they have, more importantly, been influenced by other actions taken by the CoE to harmonize family law and promote the human rights of vulnerable adults.¹³ CoE Recommendation No (1999)4 and CM/Rec(2009)11 have had a key impact in this regard.¹⁴ For instance, in the Nordic states, Recommendation No (1999)4 provided an impetus for acts on continuing powers of attorney.¹⁵ Recommendation CM/Rec(2009)11 was drafted to give member states guidance on legal reform, allowing provisions to be made for future incapacity.¹⁶ It has also contributed to creating interest in the development of voluntary measures and stimulating consideration of related issues.¹⁷

The development that has taken place in relation to adult protection matters has been increasingly linked to the UNCRPD as a result of long-term grassroots activities on the part of disability organizations. This provides a good example of how civil society activism offers a means for placing individual rights on the agenda of justice and contributing to content and understanding these rights.¹⁸ In the context of the UNCRPD, the International Disability Caucus has ensured a move away from a medical and/or charitable concept of disability towards a rights-based framework marked by principles of equality and non-discrimination.¹⁹ This group’s contribution to the drafting process in respect of the UNCRPD was important from the perspective of shifting away from involuntary measures towards voluntary measures.

2.1 Recommendations (1999)4 and (2009)11 of the Council of Europe

The protection of vulnerable adults as a legal field was underdeveloped in a number of member states of the CoE still in the late twentieth century.²⁰ The CoE first addressed the issue of adult protection in discussions at the Third European Conference on Family Law held in Cadiz, Spain, in 1995. The conference requested the CoE to invite a group of specialists to examine the desirability of drafting a European legal instrument dealing with the matter in order to guarantee the integrity and rights of vulnerable adults. The group’s work resulted in Recommendation No (1999)4, and it also considered it necessary to draft an additional instrument in order to provide guidance for member states on law reform and to lay down provisions on voluntary measures.²¹ Hence, the work also eventually led to the adoption of Recommendation CM/Rec (2009)11.

Recommendation (1999)4 applies to ‘adults who, by reason of an impairment or insufficiency of their personal faculties, are incapable of making, in an autonomous way, decisions concerning any or all of their personal or economic affairs, or understanding, expressing or acting upon such decisions, and who consequently cannot protect their interests’. The Recommendation’s core aim is to ensure that involuntary measures to protect a vulnerable adult must always take second place. They can only be used if the adult cannot be supported in any other way, i.e. by means of voluntary measures or informal measures (support provided by next of kin). The Recommendation encourages member states to consider the need to provide for, and regulate, legal arrangements that a person can take to provide for any subsequent incapacity (principle 2(7)). The explanatory memorandum of the Recommendation makes a reference, in this context, to legislation on continuing powers of attorney and advance directives.²²

It is important to note that the Recommendation puts the principles of subsidiarity, necessity and proportionality at the heart of every adult protection matter. It recommends that decisions made in adult protection matters should be proportionate and necessary. In deciding whether a legal measure is necessary, any less formal arrangements that might be employed and any assistance that might be provided by family members, by public authorities or by other means must be noted (principle of subsidiarity). No measure of protection should be established unless it is necessary, taking into account the circumstances of any case (principle of necessity). The principle of proportionality requires that where a measure of protection is necessary, it should be proportional to the degree of the capacity of the person concerned and tailored to the individual circumstances of the case. The measure should restrict rights and freedoms of the person concerned by the minimum that is consistent with achieving the purpose of the intervention.²³

The Recommendation CM/Rec(2009)11 builds upon the principles contained in Recommendation No (1999)4. However, it adopts a more straightforward attitude in promoting personal autonomy as it explicitly lays down the principle of self-determination and recommends that governments of member states promote self-determination for capable adults by introducing legislation on continuing powers of attorney and advance directives. The promotion of self-determination under the Recommendation means that states should (1) promote self-determination for capable adults in the event of their future incapacity, by means of continuing powers of attorney and advance directives, and (2) consider giving those methods priority over other measures of protection in accordance with the principles of self-determination and subsidiarity.²⁴ The Recommendation contains guidance for states concerning matters such as the content of voluntary measures—in the form of continuing powers of attorney (CPAs) and advance directives—and the appointment of attorneys, the form of such documents, and their revocation, entry into force, certification, registration and notification, and supervision.²⁵

The European Committee on Legal Co-operation working under the CoE decided in 2014 to review the implementation of Recommendation CM/Rec (2009)11. The review, published in 2017, notes that CPAs in respect of both economic and financial matters as well as health, welfare and other personal matters are available in 16 member states of the CoE. Domestic solutions vary, meaning that, for example, the material scopes of measures vary significantly between different jurisdictions. In some member states, CPAs can only cover financial matters, and in others, all or some personal matters can also be covered by voluntary measures. By way of illustration, Austria and the Netherlands, for example, reported no exclusions from the material scope of voluntary measures.²⁶ In Finland, consent to marriage or adoption, acknowledgement of paternity, making and revocation of a will, and representing the grantor in other matters of a comparably personal and individual nature are excluded from the scope of voluntary measures (section 2 of the Act on Continuing Powers of Attorney).

The two Recommendations do not directly address the issue of who is capable of giving voluntary measures—that is, what kind of decision-making capacity the grantor must have when appointing a representative and specifying requirements or providing guidance as to matters to be handled by him or her. Most importantly, the Recommendations do not directly address the question on whether a person has this right despite an existing impairment or insufficiency of his or her decision-making capacity. This is one of the core questions when contemplating how and to what extent voluntary measures promote personal autonomy and the right to self-determination—and can contribute to recognizing vulnerable adults as full members of society. The lack of reference to this matter may be due to the fact that, often and traditionally, voluntary measures are considered to be instruments used in old age, and ageing people have at least theoretically had the chance to make advance preparation for potential future challenges concerning their decision-making capacity.²⁷ One may also argue that the guiding principles of the Recommendations implicitly include the idea of a wide and flexible personal scope of voluntary measures.²⁸ The question of personal scope later came to the fore, however, particularly in the context of the UNCRPD due to its inherently wide personal scope.

2.2 UN Convention on the Rights of the Persons with Disabilities

The UNCPRD seeks to facilitate the equal enjoyment of human rights—equality of opportunities—by removing hindrances and obstacles to participation (Article 3). The Convention is a significant move away from a formal model of equality towards a substantive model and seeks to support the agency of individuals with disabilities in all areas of life.²⁹ The Convention enshrines the concept that the core element of disability lies in the dynamics between impairment and the environment—impairment or insufficiency constitutes a hindrance that affects interaction and impedes participation in society.³⁰ As specified in Article 1(2), the Convention applies to ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.³¹

The replacement of intrusive involuntary guardianship measures with less drastic measures is an important element in the removal of barriers and the recognition of vulnerable adults as full members of society.³² Article 12(2) of the UNCRPD requires states parties to recognize that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Article 12(3) covers the right to autonomy and self-determination in decision-making by reference to supported decision-making, meaning that a person with disabilities is to decide for himself or herself and is entitled to receive sufficient support when making those decisions. An adult has the right to be supported and protected flexibly, depending on what his or her own will and preferences are or may be assumed to be (Article 12(4)). Hence, the legal system must provide an appropriate assessment limited to what types of support a vulnerable adult needs in order to be able to exercise his or her legal capacity—to govern his or her affairs and life choices.³³ On the one hand, this requires to step-by-step approach to protection. The level of protection must be determined on the basis of individual needs of a vulnerable adult.³⁴ On the other hand, the emphasis is intended to be on the best interpretation of the will and preferences of the vulnerable adult.³⁵ This refers to the vulnerable adult’s protection and representation based on their independent wishes or on what is believed to be their own wishes. It differs from the more traditional ‘best interests’ concept, in which such interests reflect what others (the representatives of the adult in question) consider to be in their best interest.³⁶

Different opinions exist among legal and disability experts as to how far-reaching the requirement to replace intrusive measures with less drastic measures is. This is illustrated by the discussion on the content of Article 12(3) among stakeholders and public authorities. Advocates of the rights of persons with disabilities argue strongly that Article 12 should be read as to wholly prevent traditional guardianship regimes and especially measures leading to any kind of deprivation of legal capacity.³⁷ Legal experts and state actors take a different standpoint, noting that it would be practically impossible for all those who fall within the scope of the Convention to benefit from a system in which only supported decision-making is possible as they perhaps do not have sufficient decision-making capacity nor have ever had any decision-making capacity.³⁸

In relation to the question of who may be a grantor of powers granted in the context of voluntary measures, a similar challenge arises as between personal autonomy and protection. How can people who were born with intellectual disabilities and never had full decision-making capacity benefit from measures that require at least some capacity to decide for oneself and understand the significance of those decisions? Are they automatically excluded from the personal scope of the voluntary measures? In view of the aims of the UNCRPD, this should not be the case. Voluntary measures must be available to an extent even if a person’s decision-making capacity is only partial. The Committee on the Rights of the Persons with Disabilities states that all persons with disabilities have the right to engage in advance planning and should be given the opportunity to do so on an equal basis with others.³⁹ Domestic jurisdictions take their own approaches to the matter, as discussed in the following section.

3 Voluntary Measures in Domestic Legislation

Legal systems address the question of how to strike a balance between the right to personal autonomy and self-determination and the protection of vulnerable adults differently. This issue relates to all aspects of adult protection and voluntary measures, including the material scope of measures and the content of powers granted. It concerns the kinds of formal requirements private mandates have to fulfil, how and when they enter into force and how the use of powers is monitored and supervised.⁴⁰ As explained above, the analysis of domestic adult protection in this contribution deals in particular with the question of who has sufficient decision-making capacity to grant powers of representation by way of a voluntary measure. What decision-making capacity requirements does the grantor need to fulfil? Is full decision-making capacity required, or does something less suffice? These questions are addressed below by reference to the Finnish and the British Columbian approaches. The Finnish Act on Continuing Powers of Attorney is an obvious choice for an author in possession of Finnish legal education, but the British Columbian Representation Agreement Act is a less obvious one. However, it is a justified choice because it represents a unique bottom-up legislative approach to domestic adult protection as it has been strongly influenced by local disability activism. It is also internationally regarded as a model example of good policy on supported decision-making and promoted by the UNCRPD—despite the fact that it was drafted prior to the advent of the UNCRPD.⁴¹

3.1 The Finnish Approach

The Act on Continuing Powers of Attorney entered into force in Finland in 2007 and is intended both to promote the individual’s will and autonomy and to reduce the burden on the general guardianship system in an ageing society.⁴² It aims to allow a person to organize his or her matters in advance in case he or she later becomes incapable to handle them due to illness, mental disability or other similar cause.⁴³

Under the Act, a CPA is a private-law mandate in terms of its basic infrastructure, but its purpose and legal effects are essentially the same as those granted under the Guardianship Services Act.⁴⁴ The granted powers may relate to the representation of the grantor in relation to financial or personal matters or both. A CPA may provide for the day-to-day management of monetary affairs, the sale of a property under certain conditions or the provision of a medical authorization (section 2). In principle, the granted powers cannot extend beyond the powers of a guardian under the Guardianship Services Act.⁴⁵ This means, inter alia, that in relation to personal matters, representation is governed by the same principles as under the Guardianship Services Act (section 29(2)). The decision is made by the grantor if he or she is capable of understanding the content of the decision at the moment the decision is made even if the mandate covers representation in relation to personal matters.⁴⁶

The Act on Continuing Powers of Attorney does not specify in detail the competencies a grantor can give to a representative. They may vary depending on the grantor’s will, need and decision-making capacity. The capacity to grant a CPA is directly connected to the content of the particular instrument in question. Under section 5 of the Act, a person of at least 18 years of age can give a CPA if he or she is capable of understanding its meaning. Thus, the grantor must be able to understand its significance at the moment the powers are granted (i.e., when he or she signs the document). This requirement is to be interpreted in accordance with the general rule set out in the Contracts Act.⁴⁷ Hence, an adult only needs to understand those matters that are covered under the intended CPA. He or she does not need full decision-making capacity. For instance, an adult may be able to stipulate that a representative can handle his or her daily financial matters, but he or she cannot give power to sell a property. In a similar vein a guardianship decision covering only financial matters does not impede an adult of granting powers under a CPA in relation to personal matters if the adult at the moment of granting powers understands the significance of the powers he or she is about to grant. Furthermore, an adult may still be capable of granting powers under a CPA even if his or her existing capacity is such that it fulfils the conditions for the authorization of a power of attorney laid down in the Act (section 24(1)(3). Such authorization can be sought from the Digital and Population Services Agency immediately after the CPA has been signed by the grantor.⁴⁸

The approach adopted under the Finnish Act is flexible and in principle human-rights friendly as it is based on the grantor’s de facto decision-making capacity to understand the exact meaning of the powers he or she is granting. It protects the right to personal autonomy and self-determination of those whose existing decision-making capacity is only partial and seems to be in line with the requirements set in the UNCRPD and implicitly in the CoE’s Recommendations. However, the approach represented by the Act is not based directly on the idea of favoring capacity and step-by-step approach to protection. This becomes clear when one compares the Finnish model with the British Columbian Representation Agreement.

3.2 The British Columbian Approach

In the 1990s, a new wave of legislation began to emerge in Canada in response to concerns expressed by families and carers of people with intellectual and developmental disabilities and by health and social care professionals working with those people.⁴⁹ In British Columbia, the need for new legislation stemmed from the fact that the Power of Attorney Act did not provide sufficient safeguards in relation to the impairment of decision-making capacity. Furthermore, the traditional committeeship (guardianship) model was not considered to strike a sufficient balance ‘between the individual’s rights to autonomy and self-determination against the state’s duty to protect its citizens’.⁵⁰ Consequently, the Power of Attorney Act⁵¹ was amended to include rules on enduring powers of attorney (EPAs). This was, however, regarded as insufficient from the perspective of persons with an existing impairment of decision-making capacity as the Act sets relatively high requirements with regard to an individual’s capacity.⁵² The problem was addressed by means of special legislation, in the form of the Representation Agreement Act,⁵³ which entered into force in 2000. The Act was a result of the work of local disability activists. The intention was to avoid guardianship through the use of personal planning tools and to seek an empowering, normalizing tool that would enable adults with challenges to make their own decisions to the greatest extent possible.⁵⁴

Acquiring a full understanding of the meaning of a representation agreement (RA) calls for brief remarks on EPAs. Division 2 of the Power of Attorney Act⁵⁵ contains provisions on making an EPA (section 12). It is important to note that the provisions on EPAs are based on the presumption of capacity. This means that an adult (an individual 19 years or older) is presumed to be making decisions about his or her financial affairs and to understand the nature and consequences of making, changing or revoking an EPA. An adult may make an EPA unless incapable of understanding its nature and consequences. Section 12 lays down a test of incapability and contains, inter alia, examples of the bases on which an adult’s capacity should be evaluated.⁵⁶ It states that an adult is incapable of understanding the nature and consequences of the proposed EPA if the adult cannot understand all of the following: (a) the property the adult has and its approximate value; (b) the obligations the adult owes to his or her dependants; (c) the powers given in the EPA;⁵⁷ (d) that unless the attorney manages the adult’s business and property prudently, their value may decline; (e) that the attorney might misuse the attorney’s authority; (f) that the adult may, if capable, revoke the enduring power of attorney; and (g) any other prescribed matter.

Unlike an EPA, an RA is based on the presumption of capability. Until the contrary is demonstrated, every adult is presumed to be capable of (a) making, changing or revoking an RA and (b) making decisions about personal care, health care and legal matters and about the routine management of his or her financial affairs. An individual adult’s way of communicating with others does not offer grounds for deciding that he or she is incapable of understanding (section 3). The incapability test contained in the RA is twofold. The requirements set in relation to an adult’s decision-making capacity depend on whether the RA only covers the standard provisions set out in its section 7 or whether it also contains the non-standard provisions set out in section 9. In accordance with section 8, an adult may make an RA on the basis of section 7 even if he or she is incapable of concluding a contract; managing his or her health care, personal care and legal matters; or dealing with the routine management of his or her financial affairs. In deciding whether an adult is incapable of making an RA consisting of one or more of the standard provisions, or of changing or revoking any of those provisions, all relevant factors must be considered.⁵⁸ Section 10 sets out a test of incapability for non-standard representation agreements. An adult may authorize a representative to do any or all of the things referred to in section 9 unless he or she is incapable of understanding the nature and consequences of the proposed agreement.⁵⁹

It is noteworthy that Article 8 of the Representation Agreement Act turns the idea of capacity upside down. The British Columbian standard RA is in principle based on a similar premise as the Finnish CPA, which relates to an adult’s understanding of the specific requirements and powers imposed and conferred on the grantee. However, an RA favours capacity and gives it high importance. Its specific provisions are expressly designed to support capacity. Thus, the way in which capacity is understood and supported in an RA does not fully reflect the approach taken in Finnish CPAs. To conclude, one can argue in principle that the approach taken in British Columbian RAs reflects the requirements laid down in the UNCRPD better than the Finnish approach. However, whether this holds true in practice is another matter. As demonstrated above it seems that also the Finnish Act on Continuing Powers of Attorney can be interpreted in accordance with the requirements set out in the UNCRPD.

4 Protection of Vulnerable Adults in the European Union

The EU does not have the competence to regulate substantive elements of family law. For two overlapping reasons, there is, however, some space for adult protection within the EU legal system. On the one hand, the cross-border implications of the voluntary measures fall under Article 81 of the TFEU, which gives the EU the competence to develop juridical co-operation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases.⁶⁰ On the other hand, the EU ought to guarantee equality of opportunities to all its citizens. Discrimination on the basis, inter alia, of disability is prohibited under EU law.⁶¹ As EU citizens, vulnerable adults should be able to fully exercise their right of free movement.⁶²

The EU’s Disability Strategy 2021-2030 illustrates its commitment to endorsing the goals of the UNCRPD. The Strategy recognizes that legal barriers exist in particular for persons with intellectual disabilities, psychosocial disabilities or mental health problems whose legal capacity is often restricted or removed. The Strategy offers people with disabilities the right, inter alia, to protection from any form of discrimination, to equal opportunities and to access to justice. In order to improve people with disabilities’ access to justice and legal protection, the European Commission aims to develop measures to encourage the EU member states to collect good practices on supported decision-making.⁶³ The Commission also intends to pave the way for the ratification of the 2000 Hague Convention on the International Protection of Adults⁶⁴ by all the member states and assist its member states to implement the Convention in line with the requirements set in the UNCRPD.⁶⁵

In addition to the connections with the UNCPRD, EU actions in the field of adult protection are also substantively intertwined with the CoE’s actions, despite the fact that as the CoE has focused on soft law, the harmonization of substantive law and potential EU actions in this field would concern private international law. As Adrian Ward states: ‘[t]he organisations should work hand in hand to achieve the best possible protection for all those involved’.⁶⁶ This is self-evident as private international law solutions in relation to adult protection must follow the same principles and approaches set up in the human rights framework, as any form of substantive law must do. This is not only important from the perspective of providing rights-friendly protection for vulnerable adults themselves but also essential for the whole field of private international law, which ought to aim to achieve justifiable and acceptable solutions.⁶⁷

4.1 Cross-Border Adult Protection and the 2000 Hague Convention

The issue of EU adult protection measures came to the fore in 2009 when the European Parliament issued a session document with recommendations on the cross-border implications of the legal protection of adults, which notes, inter alia, that the legal protection of vulnerable adults must be a pillar of the right of free movement of persons. The provisions of the Hague 2000 Convention can help achieve the goal of establishing an area of justice, freedom and security, and in order to ensure the effectiveness of incapacity mandates in all the member states, a single form could be created at the Union level.⁶⁸ In a similar vein, a few years later, the European added value assessment concluded that uncertainty regarding adult protection should urgently be tackled at the EU level: ‘Filling the legal gap would be enable affected adults to benefit from the EU’s principle of free movement and residence instead of facing potential difficulties in protecting their interests abroad.’⁶⁹

Despite the need to solve cross-border challenges related to the protection of vulnerable adults, the fact that the cross-border implications of adult protection are already regulated under the 2000 Hague Convention makes the question of whether and to what extent the EU should exercise its competence in that area a difficult one to answer. In the EU-related documents, the Convention is the primary way to protect vulnerable adults, but the EU has not excluded the possibility of laying down its own additional adult protection measures.⁷⁰ As noted above, the EU encourages its member states to ratify the Convention. It cannot accede to the Convention itself as it has acceded to the UNCRPD because the 2000 Hague Convention lacks a regional economic integration organization (REIO) clause that would allow an REIO to become a party to the Convention.⁷¹

The 2000 Hague Convention applies to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests (Article 1(1)). The purpose of the Convention is to determine the state whose authorities have jurisdiction to take measures directed to the protection of the person or property of the adult, to determine which law is to be applied by such authorities in exercising their jurisdiction, to determine the law applicable to the representation of the adult, to provide for the recognition and enforcement of such measures of protection in all contracting states and to establish necessary co-operation between the authorities of the contracting states (Article 1(2)).

The Convention also addresses many of the thorniest cross-border problems relating to voluntary measures.⁷² Article 15 covers the choice of applicable law that determines ‘the existence, extent, modification and extinction of powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests’.⁷³ The article recognizes an adult’s right to have his or her own previously expressed wishes respected in cross-border situations as it gives CPAs a cross-border effect by facilitating their circulation.⁷⁴ Hence, in principle, a CPA granted in one contracting state is similarly valid in another contracting state. However, practical problems arise as the Convention has not yet been ratified by a sufficient number of EU member states.⁷⁵ Furthermore, experience has highlighted difficulties in the cross-border use of CPAs.⁷⁶ It may be that a contracting party distrusts the validity of powers granted abroad.⁷⁷ Furthermore, it may be that not that many legal practitioners or grantors of powers consider choice of law clauses to be an essential part of voluntary measures.⁷⁸

4.2 The Role of Expert Organizations in Relation to EU Actions

In the light of the scope of this book, it is interesting to note that in recent years, expert organizations have actively provided information and ideas relating to the cross-border protection of vulnerable adults in the area of EU. Some of these ideas deal specifically with actions related to voluntary measures.⁷⁹

In 2019, the European Law Institute (ELI) published a report on cross-border adult protection, which suggested that the EU consider funding projects entailing the creation of national registers of private mandates and ensuring the interconnection of these national registers. The report noted that registering private mandates in electronic registries would assist third parties—including financial, insurance and medical institutions—in verifying the authenticity of those mandates, as well as, in some cases, whether they had come into effect.⁸⁰ In 2012, the Society of Trust and Estate Practitioners (STEP) proposed an instrument called a European Power of Representation. STEP’s view was that the creation of a form that could be easily understood and recognized throughout the EU would reduce many existing practical problems.⁸¹ STEP noted that problems related to existing impairments in decision-making capacity that may impact the capacity to grant powers could be avoided by means of a regulation on a general power of attorney, which could be used both before and after a person—as a result of the impairment or insufficiency of his or her personal faculties—becomes unable to protect his or her interests.⁸²

Both these suggestions have obvious practical benefits. ELI’s suggestion that member states should be encouraged to create interconnected national registries is also in line and could be connected with the EU’s recent digitalization endeavours in the area of justice.⁸³ STEP’s idea concerning the European Power of Representation would make it possible to further emphasize an adult’s right to personal autonomy as a starting point for protection under private international law as it would show that within the EU, protection is primarily based on the authorization of self-stipulated granted powers rather than on official or judicial decisions. It would also make it possible to tackle the legal certainty and predictability challenges created by the differences between various national laws as the proposed instrument would facilitate the automatic circulation of evidence of the granted powers.⁸⁴ However, both these ideas face significant challenges. Creating functional registries even at the national level alone has proven problematic. The differences between the member states’ substantive domestic laws also have an impact, given that different approaches may be taken towards such questions as when granted powers should be registered (if at all) and at what point in time they are to be regarded as having been granted and authorized.⁸⁵ When it comes to the proposed European Power of Representation, it is not entirely clear whether the EU has the competence to regulate the matter. Roughly speaking, it seems that the EU would have competence only if the regulation dealing with the matter amounted to a substantively empty instrument of private international law and the EU’s rules were confined to formal requirements in relation to the instrument, whose content would be based on national law. For example, the decision-making capacity to grant powers and the extent of the representative’s powers would be determined by member state laws.

It would be justifiable for a voluntary measure granted in one member state to be easily used in another. This primarily concerns functional choice of law rules. With regard to more material solutions—i.e. a European standard form for a power of representation or the creation of national registries—one must note that, despite the fact that such developments would certainly be beneficial, in addition to possible competence issues, it may be questioned whether the level of mutual trust required between the member states could be brought into existence to a sufficient extent to make such an instrument viable. On the one hand, there are major differences between the member states concerning registration and drafting policies and requirements relating to voluntary measures and family-law related documents in general that would certainly make it more difficult to find a common ground for a standard form or registration that would inevitably require faith in the practices and policies of other member states. On the other hand, despite international instruments aimed at harmonizing minimum standards of adult protection, significant differences remain between the substantive laws of the various member states in respect of adult protection, personal autonomy and the self-determination of vulnerable adults.⁸⁶ These differences relate, inter alia, to the key issue touched upon in this contribution: what kind of decision-making capacity an adult must have in order to be able to grant powers by way of a voluntary measure?

5 Concluding Remarks

The analysis of the human rights framework and comparative notions on domestic legislation illustrate that voluntary measures find their way onto the legal agenda in a variety of ways. As elaborated in the chapter, in Europe, they have been endorsed especially through academic and legal expert collaboration. In Finland, for instance, the motivation behind the Act on Continuing Powers of Attorney was European ideas and development in the form of CoE Recommendation (1999)4, which for its part was born out of European expert collaboration. When it comes to possible future measures of the European union in protecting vulnerable adults it also seems that expert organizations have a keen interest in contributing to the matter. Internationally, on the other hand, disability organizations strongly influenced the conclusion of the UNCRPD. In a similar vein, the British Columbian Representation Agreement Act resulted from local disability activism.

Article 12 of the UNCRPD and the guiding principles of the two CoE Recommendations discussed above—subsidiarity, necessity and proportionality—are intertwined. The European standards are to be interpreted in the light of the UNCRPD and vice versa. This is illustrated by one of the most important questions to be tackled by domestic legislation in the near future and on which the UNCRPD, in particular, sheds light. Namely, voluntary measures ought also to be available to those whose existing decision-making capacity is impaired. However, this inclusive and flexible approach towards the personal scope of voluntary measures is also implicitly supported by the guiding principles laid down in the CoE Recommendations. Hence, in future, a flexible approach towards the protection of vulnerable adults ought to gain ground in the context of legislative reforms. This refers to step-by-step approach to protection explicitly illustrated by the British Columbian system. Furthermore, a flexible approach towards the capacity to grant continuing powers of attorney, as adopted in the Finnish Act on Continuing Powers of Attorney, implicitly promotes the same approach. The Finnish example, in fact, shows that flexible interpretation and a human-rights-friendly approach can contribute to broadening the personal scope of voluntary measures.

In relation to the EU, questions related to voluntary measures are linked not only to personal autonomy, self-determination, non-discrimination and equality of opportunities—rights provided in the human rights instruments—but also to EU citizens’ right of free movement. When it comes to voluntary measures, legal problems related to them may prevent the free movement of vulnerable adults. These challenges have been acknowledged at the EU level, as the body of reports and statements highlight. Due to limitations on the EU’s competencies, the key issue concerns in principle the cross-border (private international law) aspects of voluntary measures. Studies produced by expert organizations have argued that better circulation of voluntary measures in Europe and the possibility of a European power of representation would support both equality of opportunities and the free movement of EU citizens.

In summary, one might think that ethically delicate questions related to family law and, in particular to adult protection, are intrinsically domestic in nature. This is not true as this chapter demonstrates. The development of voluntary measures is an example of the intertwined work of different international actors. Importantly, a vast array of different actors with different working methods have contributed and continue to contribute to the development of laws on international, European and domestic level when it comes to voluntary measures and supporting equality of opportunities and the right to personal autonomy of vulnerable adults.