The Protection of Vulnerable Adults in EU Member States. The Added Value of EU Action in the Light of The Hague Adults Convention

Risultato della ricerca: Contributo in libroChapter

Abstract

This study illustrates the way in which issues relating to the protection of vulnerable adults in cross-border situations are currently addressed in three EU Member States – Italy, France, and the United Kingdom – which have been chosen on grounds of representativeness. The analysis shows that a wide ratification of The Hague Convention on the International Protection of Adults of 13 January 2000 would make the protection of vulnerable adults throughout Europe more effective and efficient, and would improve the conditions under which the persons concerned exercise their right to move and reside freely in the EU. Under the Convention, the difficulties experienced in Italy with the use of citizenship as the primary connecting factor for the protection of adults, which potentially leads to the application of a law other than the law of the forum, would almost cease to exist. The same holds for the problems caused by the present lack of conflict-of-law rules dealing with powers of attorney granted in contemplation of a loss of capacity. Other problems arise because of the absence of provisions ensuring the proper management of ‘positive conflicts of jurisdictions’ (i.e., situations in which the authorities of two or more countries are concurrently seised of the protection of the person or property of the same adult). If The Hague Convention on the International Protection of Adults were in force for all EU Member States, the situation would equally improve in those Member States that are already bound by the Convention, such as France and the United Kingdom, with respect to Scotland. The authorities of these States would be entitled to seek the cooperation of the authorities of the other Member States with which the situation is, or may become, connected, while adults and those in charge of their protection could easily rely on the effects of measures of protection taken in one Member State as soon as the need arises to protect the adult in another Member State. For similar, but stronger, reasons, the situation would improve in those other Member States, like the United Kingdom, with respect to England and Wales, that are not a party to the Convention, but have decided to enact domestic legislation to give effect to its provisions. Based on these findings, the study concludes that the EU should take the necessary measures to have all EU Member States ratify, or accede to, the Hague Convention on the International Protection of Adults. In addition, the EU should consider enacting legislation, based on Article 81 of the Treaty on the Functioning of the European Union, aimed at furthering cooperation in the relations among Member States, while keeping The Hague Convention as the basic set of uniform rules governing the international protection of adults in Europe. Such legislation would fix the few weaknesses of the Convention and ensure consistency with EU legislation relating to neighbouring areas of private international law. A future legislative measure relating to the protection of vulnerable adults in cross-border cases could, among other things: (i) improve the cooperation among the authorities of EU Member States, in particular by strengthening their direct communications; (ii) abolish, under appropriate circumstances, the requirement of exequatur for the enforcement in a Member State of measures of protection taken in another Member State; (iii) create a European Certificate of Powers Granted for the Protection of an Adult, to replace the Certificates contemplated under Article 38 of the Convention; (iv) enable adults, subject to appropriate safeguards, to choose the Member State whose authorities should have jurisdiction to take measures directed to their protection in the event of incapacity; and (v) provide for the ‘continuing’ jurisdiction of the authorities of the Member State of the former habitual residence of the adult for a period following the transfer of the adult’
Lingua originaleEnglish
Titolo della pubblicazione ospiteProtection of Vulnerable Adults – European Added Value Assessment
EditorC. Salm
Pagine106-177
Numero di pagine72
Stato di pubblicazionePubblicato - 2016

Keywords

  • Diritto internazionale privato
  • Private international law
  • Protection of adults
  • Protezione degli adulti

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