A new dawn for the cross-border protection of vulnerable adults?

Making an English lasting power of attorney (LPA) (or one of its international equivalents) should provide the donor with the peace of mind of knowing that their chosen representatives can carry out their wishes should the donor lose capacity. But in an increasingly internationally mobile world, making arrangements for a loss of capacity that will be easy to implement practically can be challenging. Donors may have assets, seek medical treatment or simply spend time in different jurisdictions with markedly distinct laws on mental capacity and different approaches to the practicalities.  

The European Commission’s proposals

Published in May 2023, the European Commission’s (EC) long-awaited proposals ‘to better guarantee the rights of adults in need of protection or support in cross-border situations’ has been hailed by practitioners as a significant positive step. Lawyers have long called for the simplification of the judicial and administrative procedures governing the cross-border recognition and enforceability of legal protections, broadly known as powers of representation, for adults who lack mental capacity. The EC recognises that, presently, there are no uniform rules. Determining which court has jurisdiction and how to give effect to foreign powers can be a minefield.

The EC has proposed two complementary measures for the protection of adults. First, a Council Decision obliging member states to sign and ratify the 13 January 2000 Hague Convention on the International Protection of Adults, which safeguards adults in international situations who cannot protect their own interests. Importantly, it exists separately to the EU because mental capacity laws fall outside the EU’s recognised competence. It is a tried and tested mechanism. And yet, only 12 member states have ratified it to date.

Second, the EC has proposed a Regulation providing ‘streamlined’ rules for the recognition and enforcement of powers of representation and other protection measures (based on the Hague Convention), including:

• a provision for vulnerable adults to choose the member state with jurisdiction over matters concerning their mental capacity;
• a uniform European Certificate of Representation; and
• intra-EU information sharing via online protection registers.

The EC estimates that between 145,000 to 780,000 adults in the EU are placed under a protection measure by a judicial or administrative authority in cross-border cases. The new package should make it more straightforward for vulnerable adults’ representatives to manage their affairs and for protection measures to work more efficiently across EU member states.

STEP’s global representative power

Noting that managing the affairs of clients who have lost capacity can be highly contentious, the Society of Trust and Estate Practitioners (STEP) has welcomed the EU’s proposals. In August 2023, the STEP Journal argued for a ‘gold standard’ harmonisation of international protection measures, explaining that this would resolve both the legal and social issues arising when an individual lacks capacity to manage their affairs. Indeed, STEP has since announced that they have prepared a prototype global representative power (essentially, a uniform, international LPA), which they will lobby governments to introduce.

Jurisdictional limitations

The EC, too, is acutely aware of the above issues: the objective behind their proposals is ‘to protect…fundamental rights, such as the right to autonomy… [and] to strengthen legal certainty and predictability in cross-border situations’. However, being EU law, once implemented, the Regulation will of course only apply to cross-border situations between EU member states. Although the Hague Convention provides for mutual recognition and enforceability amongst its parties, which includes jurisdictions such as Scotland, Monaco and Switzerland that are not EU member states, enforceability issues will remain where a non-EU jurisdiction is concerned.

Such issues are especially relevant for clients with UK interests. Despite the administrative challenges of doing so post-Brexit, retirees remain motivated to spend their later years abroad. The Department for Work and Pensions estimated that as at winter 2022, over one million UK pensioners were living abroad. As important as the EC’s new proposals are, the Regulation will apply only to cases between EU member states and if the implementation of the Hague Convention by states that have not yet adopted it is delayed, some challenges will remain.

Final thoughts

It is hoped that the EC’s proposals will inspire other similar cross-border agreements, as well as wider ratification of the Hague Convention by states outside the EU, and it will be interesting to see how STEP’s proposals for the global representative power fit into this.

Edward Reed is a partner and Hatty Jenner is an associate at Macfarlanes
macfarlanes.com