The relevance of private international law to the effective realisation of the fundamental rights of vulnerable adults in cross-border situations
| Autor | Pietro Franzina |
| Cargo del Autor | University of Ferrara (Italy) |
| Páginas | 53-61 |
— 53 —
Capítulo V
THE RELEVANCE OF PRIVATE INTERNATIONAL LAW
TO THE EFFECTIVE REALISATION
OF THE FUNDAMENTAL RIGHTS
OF VULNERABLE ADULTS IN CROSS-BORDER SITUATIONS
P F
University of Ferrara (Italy)
A
The protection of adults who are not in a position to take care of their interests due to an
impairment or insufficiency of their personal faculties is the object of rules that vary significantly
from one country to another. In cross-border cases, special provisions are needed to determine,
among other things, whether the authority of a particular State are entitled to rule on the
protection of the person or property of an adult, and to identify the law that should govern such
protection. These rules, too, however, change in principle from country to country. This two-fold
diversity undermines the effectiveness of the protection of vulnerable adults, and hinders the full
realisation of the fundamental rights of those concerned. The chapter analyses the advantages
of a widespread ratification of the Hague Convention of 13 January 2000 on the international
protection of adults. In particular: the risk of positive conflicts of jurisdiction would be reduced
to a minimum; inconsistencies as to the substance of the protection would almost disappear; the
issues surrounding the cross-border enforcement of mandates in anticipation of incapacity would
be properly addressed; the recognition of foreign protection measures would be enhanced.
1. GUARDIANSHIP, PRIVATE MANDATES AND OTHER MEASURES AIMED
AT THE PROTECTION OF VULNERABLE ADULTS IN THE PRISM
OF FUNDAMENTAL RIGHTS
Various measures may be adopted by the judicial or administrative authorities
of a country to protect persons aged 18 or more who, due to an impairment or
insufficiency of their personal faculties, are not in a position to take care of their
interests. These normally include the appointment of a guardian or administrator
charged with assisting the adult concerned with respect to decisions relating to his
welfare or his property. Furthermore, adults may grant in advance special powers
of representation to a person of their choice, with the understanding that those
powers will come into effect (or remain in place, if they were meant to be used
earlier) when the grantor is no longer in a position to protect his interests. The
instruments concluded for the latter purpose are generally known as lasting powers
of attorney in England, mandats de protection future in France and Vorsorgevollmächte
in Germany and Austria, to name a few. While they are normally intended to be
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