There is currently no framework for the cross-border recognition of court orders affecting the legal capacity of adults. Whereas family court orders (divorce or maintenance for example) are recognised across EU member states, orders for the protection of vulnerable adults are not.
For example, a Lasting Power of Attorney (or LPA) registered with the Office of the Public Guardian in the UK is not recognised in Italy.
Likewise, a court order made in Italy nominating a guardian (tutore/ amministratore di sostegno) or removing legal capacity (interdizione) will not be recognised in the English courts.
This means that family members who look after their relative’s bank account in one country, will have to start from scratch in another country if there are also assets there that the vulnerable adult is unable to deal with themselves.
In a case in which we were applying to appoint an amministratore di sostegno for a 92 year old client in Castel Gandolfo last year, the Italian court of Velletri asked for evidence that a British citizen, even though living for many years in Italy, could be made subject to a guardianship order here at all. In other words, her family had to produce evidence of whether English law would permit this and which assets that order would apply to.
These barriers can therefore hamper the efforts of family members of vulnerable adults in dealing with their possessions. That can make is excruciatingly diffcult to have access to funds which are urgently needed to pay for their care. Applying to courts in more than one country is expensive and prohibitive given the different law and language used.
The only international agreements which currently give guidance in cases such as this are the Hague Convention of 2000, and the United Nations Convention on the Rights of Persons with Disabilities of 13 December 2006.
Plans have been underway for more than 10 years to draft an instrument in EU law, to complement other legislation similar to those on family law, succession and recognition of judgements in civil matters.
The European Parliament made recommendations to the Commission as long ago as 2008 that “problems have arisen because of the increasing movement between Member States where there is a net outflow of retired people, including vulnerable adults, and those Member States where there is a net inflow of retired individuals” and it was agreed that given the disparities between Member States for example between Italy and the UK, the legal protection of vulnerable adults must be a pillar of the right of free movement of persons.
In 2017 the European Parliament adopted a resolution on the protection of vulnerable adults, and asked the EU Commission to submit a proposal for a regulation aimed at the automatic recognition and enforcement of decisions before 31 March 2018.
This proposal is expected to:
- facilitate the creation of national registers of protection decisions and powers of attorney
- introduce single EU forms, to ensure that information can be more easily shared across the EU
Assisting international families in the protection of relatives with mental incapacity is an important area of our practice, we will be following developments towards a new EU Regulation on this subject, and will post any useful updates on our website in the future.