B. Background to the Convention

The raison d'etre of the Convention is to improve the protection in international situations of adults who, by reason of an impairment or insufficiency in their personal faculties, are not able to safeguard their own interests.Footnote ⁵ It is designed to replace an earlier Convention, signed on 17 July 1905, concernant l'interdiction et les mesures de protection analogues, a Convention which had been ratified by only a few states, with further ratifications unlikely, was both old-fashioned and little used.Footnote ⁶

The 2000 Convention extends to all adults who experience any form of incapacity which prevents them from safeguarding their own interests. The need for the Convention was considered to be pressing particularly in light of increasing human life expectancy, and the corresponding rise in the incidence of illnesses related to old age, such as Alzheimer's disease.Footnote ⁷ These concerns were considered to be heightened at the international level as a result of the increasing ease of international travel, something which has led to many people of retirement age deciding to spend the latter part of their lives abroad, primarily in milder climates.Footnote ⁸

Whilst it has been acknowledged that there has been only an insignificant number of reported cases on the protection of adults in international situations,Footnote ⁹ the Convention was considered justified on the basis that this situation would soon change in light of the above factors.Footnote ¹⁰ The Convention can thus be considered more as a proactive than reactive step. Indeed, although part of the background to the Convention was the fact that a number of jurisdictions had, or were in the course of, reforming their domestic law in this area,Footnote ¹¹ the anticipatory nature of the Convention means that it will be able to offer guidance in relation to international problems faced by those jurisdictions which are yet to legislate. In turn, this may act as a stimulus to those jurisdictions to ratify the Convention, and reform their rules of private international law in this area.

Regardless of whether a jurisdiction has chosen to reform its law, the problems faced in this area are diverse. For example, questions may arise over which court has jurisdiction to make decisions in relation to an adult, present in one jurisdiction, but habitually resident in another. Further, if a party has organised in advance how he wishes his affairs to be dealt with, in the event that he is unable to protect his own interests, it is vital to ascertain whether these arrangements will be recognized in other jurisdictions and, if so, to what extent. The Convention addresses these issues by providing rules on jurisdiction, applicable law and the international recognition and enforcement of protective measures. It is not the intent of this Note to examine these rules in detail, something which is achieved by the Explanatory Report.Footnote ¹² Instead, a number of specific factors will be considered: the relationship between the present Convention and the 1996 Children Convention; the modalities of implementation in the United Kingdom; and the validity of powers of attorney.

C. Relationship to the 1996 Children Convention

The origin of the present Convention can be traced back to the Decision taken at the Seventeenth Session of the Hague Conference ‘to include in the Agenda of the Eighteenth Session the revision of the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, and a possible extension of the new Convention's scope to the protection of incapacitated adults’.Footnote ¹³

In relation to the protection of minors the intentions of the Seventeenth Session of the Hague Conference were realised through the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. As its title suggests, the 1996 Convention only applies to persons under the age of 18 years.Footnote ¹⁴ It does not apply to persons over that age, even if such measures of protection are implemented previously and continue to be effective. Thus, as soon as a person attained 18 they are no longer the concern of the 1996 Convention, with it being left to each State to address any new or continuing requirements of protection through national law.Footnote ¹⁵

Originally there were suggestions that adults be included within the 1996 Convention. However, the Eighteenth Session of the Hague Conference lacked the time to consider the specific issues concerned so a decision was made to include the topic on the agenda of a Special Commission of a Diplomatic Character.Footnote ¹⁶ This decision was justified subsequently when the Special Commission found that there were important differences in the normal situations of children and incapable adults at the international level.Footnote ¹⁷ Specifically, the problem in relation to children normally centres around a contest for custody and a conflict of jurisdictions. In the case of incapacitated adults it is less likely such a conflict will exist. Instead, the issue will more often be the identification of a single system which can provide adequate protection for the adult. Moreover, acknowledgement had to be given to the fact that adults are increasingly likely to make prior-arrangements for their representation should they lack capacity in the future considerations which are inapplicable to children.Footnote ¹⁸

The 2000 Convention thus takes these considerations into account and achieves in relation to adults what the 1996 Convention does in relation to children, thereby providing a unified system of protection. The symbiosis between the two instruments is further aided through Article 2(2) which extends the 2000 Convention to those ‘measures in respect of an adult who had not reached the age of 18 years at the time the measures were taken’. In consequence, this means that measures that are taken in relation to a child under the 1996 Convention, but are intended to have continuing effect once the child has reached majority, will fall within the ambit of the latter Convention when the child reaches the age of 18. The provision thus makes it possible to avoid a break in continuity between the two Conventions.Footnote ¹⁹ In contrast, such continuity may be imperfect as, under Article 22(2)(a), recognition of a measure which falls within the scope of the 2000 Convention may be refused if the jurisdictional basis relied upon to take the measure was not a ground of jurisdiction included within Convention. As the grounds of jurisdiction between the 1996 Convention and the 2000 Convention do not equate exactly this would allow a Contracting State in certain circumstances to refuse recognition under the 2000 Convention to a measure taken in relation to a child under the 1996 Convention, once that child attains 18 years of age. However, it is hoped that the spirit of the two Conventions will be respected and that reliance on this ground of refusal will be minimal in such circumstances.

D. The Convention in Scotland and England and Wales

The manner in which the provisions of the Convention have been implemented in both Scotland and England and Wales respectively raises a number of issues. As stated, the United Kingdom has at present ratified the Convention for Scotland only. This marks the first time that the United Kingdom has made use of the federal states clause in order to ratify a Hague Convention for only one of its constituent jurisdictions.Footnote ²⁰ However, whilst ratification occurred in November 2003, the large majority of the rules of private international law contained in the Convention have been in force in Scotland since April 2001. This is as a result of the Adults with Incapacity (Scotland) Act 2000 which, through section 85 and schedule 3, reformed Scottish private international law in this area in line with the Convention. Moreover, the remaining provisions which were not implemented in 2001, primarily relating to jurisdiction under Articles 7 (nationality) and 8 (transfer of jurisdiction), came into effect as from the ratification date.Footnote ²¹

A similar process occurred in England and Wales a number of years later. Here the Mental Capacity Act 2005 introduced, through section 63 and schedule 3, provisions implementing the terms of the Convention. These provisions, subject to a number of exceptions, became effective on 1 October 2007.Footnote ²² Thus, the legislature in both jurisdictions have taken a unilateral decision to apply the provisions of an international convention at a domestic level, in advance of that Convention coming into force. This is unsurprising when it is considered that both jurisdictions intended to ratify the Convention—the prior amendments to domestic law were therefore a necessary step along this path. However, differences between the implementation of the Convention in the two jurisdictions are apparent as a result of both the manner in, and time at which, implementation has taken place.

From April 2001, a Scottish judicial or administrative authority had jurisdiction over an adult in a number of circumstances provided for by the Convention, primarily if they were habitually resident in Scotland. However, two jurisdictional grounds only came into effect following ratification—jurisdiction based on nationality and that following an Article 8 request. As these two bases are contingent upon communication with other Contracting States the delay in enforcement is understandable, although it would have made more sense if they only came into effect following ratification and the Convention entering into force. This is because, before the entry into force of the Convention, there were, by necessity, no other authorities of Contracting States to which the provisions could validly refer. Indeed, this was notable particularly in Scotland as, with that jurisdiction being the first to ratify the Convention, it was some four years later before the next ratification, and consequent identification of competent authorities, occurred. However, as the Convention has now entered into force in respect of Scotland, jurisdiction under Articles 7 and 8 may now be exercised coherently.

The same cannot be said of the provisions contained in the Mental Capacity Act 2005. That Act has implemented the provisions of the Convention in a similar manner to the Scottish legislation, although the small number of reservations are removed, not when the Convention is ratified by England and Wales, but when the Convention enters into force. The result of this is that, under the Mental Capacity Act 2005, the Convention became of full effect in England and Wales from 1 January 2009 but, for international purposes, it will have no effect until ratified. Thus, a court in England or Wales is now under a domestically-imposed duty to advise the authorities of the adult's habitual residence that they intend to exercise jurisdiction on the basis that the adult is a British national with a closer connection to that jurisdiction than with any other constituent part of the United Kingdom.Footnote ²³ However, the actual Contracting States will be under no reciprocal obligation under the Convention as England and Wales are not, in international law, a Contracting State.

Similar problems occur in relation to the transfer of jurisdiction possible under Article 8, for which the Mental Capacity Act 2005 schedule 3, para 8(3), provides that the courts of England and Wales will have jurisdiction following the acceptance of such a request. However, once again this provision will be inapplicable until England and Wales ratify the Convention. As an Article 8 request must be made by one Contracting State to another, this does not, at present, include England and Wales. Moreover, as England and Wales is yet to declare a Central Authority, as required of all Contracting States by Article 28, this would also create practical difficulties. Even if such a request were possible, other Contracting States would not be able easily to ascertain a Central Authority to which such a request could be referred. Whilst these problems will be removed when England and Wales ratify the Convention, this is yet to occur, with the delay, especially in light of the Scottish developments, left unexplained. Indeed, the implication from the text of the 2005 Act that the exempted provisions would only have effect when the Convention came into force would suggest ratification was considered a mere formality, and would be achieved before this point. As such, it is submitted that the Ministry of Justice should take steps to ratify the Convention as soon as possible in order to avoid any difficulties that may arise from a staggered implementation as between the domestic and international levels.

E. Powers of Attorney and Advance Medical Directives

One of the key elements contained in many domestic laws aimed at the protection of adults who lack capacity is that competent adults are given the power to make their own arrangements to regulate their affairs in the event of their future incapacity. For example, the Adults with Incapacity (Scotland) Act 2000 introduced the concepts of both continuing and welfare powers of attorney.Footnote ²⁴ Similarly, in England and Wales the Mental Capacity Act 2005 replaced the previous concept of enduring powers of attorney under the Enduring Powers of Attorney Act 1985 with the compasable concept of lasting powers of attorney.Footnote ²⁵ The benefit of these powers, the titles of which vary across jurisdictions, is that they promote autonomy on the part of the adult, ensuring their wishes will be respected following the onset of incapacity.

Under the Convention, Article 13(1) provides the general rule that the authorities of Contracting States normally will apply their own law in implementing any measures of protection. However, if this law was applied to powers of attorney validly created elsewhere, but not valid in the subsequent Contracting State, it would be unlikely that this power would be implemented. Article 15 therefore introduces an exception to this general rule in order to respect the right of parties to plan for their incapacity, even in international situations. Thus, the existence, extent, modification and extinction of such powers of representation, however defined, will be governed, in the absence of choice, by the law of the State of the adult's habitual residence at the time of its formation.Footnote ²⁶ Moreover, the adult is also given a limited form of choice to designate the applicable law and may choose between the law of a State of which he is national, the law of the State of a former habitual residence, or, with respect to property, the law of the State in which the property is located.Footnote ²⁷

Through this exception the Convention intends to ensure that party autonomy is respected and that powers of attorney, and other similar institutions, will be valid in other Contracting States, even when those States may not offer an analogous domestic institution. However, there are a number of caveats which are applicable to this overarching aim and may result in such powers being disregarded. Firstly, the authorities having jurisdiction under the Convention are given the power to withdraw or modify powers of attorney where they are ‘not exercised in a manner sufficient to guarantee the protection of the person or property of the adult’.Footnote ²⁸ This is an understandable exception and allows the authorities with jurisdiction under the Convention to judge the circumstances of the adult at the present time in order to ensure that they receive the necessary protection as, for example, the powers granted may have become inoperable or inadequate in the intervening period. Moreover, even in these circumstances, there is still a requirement that the prior wishes of the adult be respected as, when such powers are withdrawn or modified, the law normally applicable ‘should be taken into consideration to the extent possible’.Footnote ²⁹ Whilst the ‘extent possible’ is left undefined it should ensure, at the very least, that the law under which the power was created is not discounted entirely and that the authorities in other Contracting States will endeavour to recognise powers of attorney, apart from in the most exceptional of circumstances.

In contrast, the exceptions provided by Articles 15(3), 20 and 21 may well lead to situations in which the prior wishes of an adult will not be respected, particularly in the case of advance medical directives, ie instructions as to the provision or, more importantly, withholding, of medical care to an adult who lacks the capacity to make that decision themselves.Footnote ³⁰ Consequently, it is doubtful whether a person who has created an advance medical directive, valid in the jurisdiction under which it was created, to refuse life-saving medical treatment, will have their wishes honoured in another Contracting State, if that State does not provide for such eventualities. As the exercise of such powers are governed by the law of the State in which they are to be exercised,Footnote ³¹ it is unlikely that an advance medical directive will be implemented as the adult intended. Instead, it may be that the advance directive will be ignored in favour of providing treatment, something which is the exact opposite of what the party desired. Moreover, these previous arrangements may also fall foul of the mandatory laws and, in the more extreme circumstances, the public policy of Contracting States under Articles 20 and 21 respectively.

Finally, whilst the preceding discussion has been premised upon powers of attorney which have effect only after the donor becomes incapacitated this is not always the case. Thus, an adult may make arrangements for a person to act on their behalf, even if they still are of full capacity. Such a power, which takes effect immediately, will normally end if the party is later determined to lack capacity.Footnote ³² The private international law aspects of agreements which take effect when an adult is still of full capacity are regulated by the Hague Convention of 14 March 1978 on the Law Applicable to Agency. This Convention provides the general rule that the agreement will be governed by the law of the habitual residence of the agent.Footnote ³³

A person may however provide for a power of attorney which gives the attorney the power to act not only at the onset of incapacity, but also in relation to the adult's interest whilst they are still of full capacity. Where the habitual residence of the adult and the agent differ, this will create the difficult question of which of the two laws should be treated as the appropriate applicable law. As the United Kingdom is not party to the 1978 Covention, and instead applies the same law in all circumstances, this should not cause any difficulties within its respective jurisdictions. However, other jurisdictions, notably France, have ratified this earlier Convention. The Explanatory Report suggests that the power could be divisible on the basis of the date of incapacity and treated in law as two separate mandates.Footnote ³⁴ This would go some way towards addressing the issue.Footnote ³⁵

Overall, it is apparent that, in relation to powers of attorney and advance medical directives, arrangements which are likely to be utilised frequently under the Convention, a number of problems may occur in practice. Whilst others have suggested that the appropriate course of action would be to remove such issues from the ambit of the Convention entirely,Footnote ³⁶ it is submitted that this is too severe a solution. Although there may be doubt in certain situations whether agreements made elsewhere will be honoured, this will not be the case in most circumstances. Thus, the convention will facilitate the validity of these powers in the majority of circumstances, and therefore will achieve its aim in relation to most adults.

F. Co-operation and Information Sharing

Chapter V and, to a lesser extent, Chapter VI of the Convention contain a number of provisions relating to co-operation and the sharing of information which are designed to complement the more substantive private international law rules contained therein. This is achieved primarily through the creation of Central Authorities and Contracting States are required to designate such an authority.Footnote ³⁷ Such cooperation and information sharing is vital, especially in relation to the jurisdictional grounds which require the authorities in a Contracting State other than the habitual residence of the adult to inform the authorities of that State if they intend to exercise jurisdiction. Indeed, it has been stated that ‘the efficacy of the system will stand or fall on the functioning of the communication system’.Footnote ³⁸ Although this comment was restricted to questions of jurisdiction it can easily apply to all other aspects of the Convention.

In this regard Article 38 provides that a Contracting State may issue certificates indicating the powers given to persons under their jurisdiction. However, such certificates are not mandatory and this can be construed as a missed opportunity.Footnote ³⁹ Moreover, the fact that Scotland still does not have a public register for those documents created under the provisions of the Adults with Incapacity (Scotland) Act 2000 could also have a negative impact upon such provision of information within that jurisdiction. Finally, the manner in which England and Wales has implemented the Convention as discussed above means that, until ratified, this jurisdiction will not, officially, have a Central Authority and other Contracting States will not be obliged to share any relevant information.

G. Conclusion

The need for legal systems to provide adequate protection for incapacitated adults will undoubtedly become more pressing the coming years, domestically as well as internationally. The 2000 Hague Convention provides a valuable framework of rules which will promote increased certainty and uniformity within this area. Whilst these rules are not free from criticism, the concerns which exist are of a minor nature and do not strike at the core of the instrument. Indeed the primary challenge is the necessity of extending the Convention regime beyond France, Germany and Scotland.