Study on the cross-border legal protection of vulnerable adults in the EU : final report.
Date: 2022-02-25
Institutions: Directorate-General for Justice and Consumers
Subjects: EU law, added value, adult, aid to disadvantaged groups, comparative analysis, cross-border cooperation, data collection, international law, judicial cooperation, ratification of an agreement, right to justice

STUDY ON THE CROSS- 
BORDER LEGAL  
PROTECTION OF VULNERABLE 
ADULTS IN THE EU 

Final Report 

Lorenz Adriaenssens, Camille Borrett, Sarah Fialon, Pietro Franzina, Nathy Rass-Masson and Ian 
Sumner 
November – 2021 

 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers  
Directorate A Civil and Commercial Justice 
Unit A1 Civil Justice 

Contact: Unit A1 

E-mail: 

JUST-A1@ec.europa.eu  

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

STUDY ON THE CROSS- 
BORDER LEGAL  
PROTECTION OF VULNERABLE 
ADULTS IN THE EU 

Final Report 

Directorate-General for Justice and Consumers 
Directorate A: Civil and commercial justice 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Study on the cross-border legal protection of vulnerable adults in the EU 

Table of contents 
LIST OF TABLES .................................................................................................................. 7 

LIST OF FIGURES ................................................................................................................ 7 

LIST OF ABBREVIATIONS ..................................................................................................... 9 

EXECUTIVE SUMMARY ......................................................................................................... 10 

1 

INTRODUCTION .......................................................................................................... 18 

1.1 
1.2 

Project objective and scope ................................................................................. 18 
Project methodology, outcome and challenges ...................................................... 19 
Methodology ........................................................................................ 19 
1.2.1 
Stakeholder consultation ....................................................................... 22 
1.2.2 
Challenges ........................................................................................... 27 
1.2.3 

2 

COMPARATIVE ANALYSIS OF NATIONAL REGULATORY SYSTEMS ...................................... 29 

2.2 

2.1  General overview ............................................................................................... 29 
National legal frameworks ...................................................................... 29 
2.1.1 
Description of the competent authorities .................................................. 35 
2.1.2 
The concept of vulnerable adult .............................................................. 47 
2.1.3 
Protection of vulnerable adults in the domestic legal framework .............................. 52 
Protective measures taken by judicial or administrative authorities ............. 53 
2.2.1 
Private mandate ................................................................................... 67 
2.2.2 
Protection granted by operation of law .................................................... 79 
2.2.3 
National registries of measures of protection ............................................ 82 
2.2.4 
2.3  Regulatory framework applying to cross-border situations ...................................... 88 
Applicable domestic legal framework ....................................................... 88 
Private international law rules applicable in the Member States .................. 89 

2.3.1 
2.3.2 

3 

PRACTICE ON CROSS-BORDER CASES ........................................................................... 99 

3.1.1 
3.1.2 

3.1  Use of protective measures in the Member States .................................................. 99 
Trends in the number of protective measures ........................................... 99 
Stakeholder perceptions on the number of protective measures ............... 103 
3.2  Overview of case-law on cross-border cases in the Member States ........................ 106 
Legal and practical challenges in cross-border cases ............................................ 106 
3.3 
3.3.1 
Main challenges faced by vulnerable adults and their representatives 
in the context of cross-border cases ...................................................... 106 
Main challenges faced by legal practitioners in the context of cross-
border cases ...................................................................................... 109 
Main challenges faced by competent ministries and central authorities 
in the context of cross-border cases ...................................................... 110 
Breaches of the fundamental rights of persons with intellectual 
disabilities linked to the UNCRPD occurring in cross-border cases ............. 112 

3.3.3 

3.3.4 

3.3.2 

3.4 

Legal and practical challenges related to the Functioning of the 2000 Hague 
Convention ..................................................................................................... 114 

4 

ANALYSIS OF THE POTENTIAL FOR EU INTERVENTION .................................................. 120 

4.1 

4.2 

Analysis of the need for EU intervention ............................................................. 120 
Acknowledgment of the need by stakeholders ........................................ 120 
4.1.1 
4.1.2 
Existing shortcomings justifying EU intervention ..................................... 125 
Analysis of the instruments for EU intervention ................................................... 129 
Ratification of the 2000 Hague Convention ............................................. 131 
4.2.1 

5 

Study on the cross-border legal protection of vulnerable adults in the EU 

4.2.2 

Adoption of an EU instrument complementing the 2000 Hague 
Convention ........................................................................................ 138 

5 

CONCLUSIONS AND RECOMMENDATIONS .................................................................... 153 

5.1  Recommendations on mandatory ratification ....................................................... 153 
5.2  Recommendations on the adoption and content of a possible EU instrument ........... 153 

ANNEX I Glossary 

ANNEX II Country fiches for the 27 MS 

ANNEX III Database providing the sources of information and case-law identified 

ANNEX IV Survey questionnaire 

ANNEX V List of stakeholders consulted 

ANNEX VI Detailed survey analysis  
ANNEX VII Summary of interview at EU level 

6 

 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

List of tables 

Table 1: Number of stakeholders contacted ........................................................................... 23 
Table 2: Overview of responses to interviews ........................................................................ 23 
Table 3: Country of establishment of legal practitioners (N=50) ............................................... 24 
Table 4: Association of legal practitioners .............................................................................. 25 
Table 5: Country of the non-technical survey respondents (N=16) ........................................... 25 
Table 6: Status of ratification of the UNCRPD and 2000 Hague Convention ................................ 31 
Table 7: Overview of competent authorities and corresponding role .......................................... 36 
Table 8: Concept of vulnerable adult in the Member States ...................................................... 47 
Table 9: Overview of means of adoption of protective measures .............................................. 53 
Table 10: Overview of protective measures available to competent authorities ........................... 55 
Table 11: Overview of persons-institutions that can introduce proceedings ................................ 60 
Table 12: Main legal grounds for the termination of a protective measure ................................. 65 
Table 13: Overview of private mandates provided in national law ............................................. 68 
Table 14: Persons designated as proxy ................................................................................. 71 
Table 15: Formal requirements and entry into force of private mandates .................................. 73 
Table 16:Conditions to end the mandate ............................................................................... 78 
Table 17: Persons acting as representative ............................................................................ 80 
Table 18: Content and functioning ........................................................................................ 83 
Table 19: Access Rights ...................................................................................................... 86 
Table 20: Jurisdiction and applicable law in the Member States that are not party to the Convention
 ................................................................................................................................ 90 
Table 21: Rules applicable to parallel proceedings in the Member States ................................... 93 
Table 22: Recognition in Contracting States of measures taken in Non-contracting States ........... 95 
Table 23: Total number of decisions adopted on protective measures (2015-2020) .................... 99 
Table 24: Total number of protective measures adopted by type of measure (2015-2020) ........ 100 
Table 25: Total number of private mandates registered (2015-2020) ...................................... 101 
Table 26: Number of foreign protective measures in Portugal (2015-2020).............................. 102 

List of figures 

Figure 1: Overview of approach to methodology ..................................................................... 20 
Figure 2: Type of legal practitioner (N=50) ............................................................................ 25 
Figure 3: Type of non-technical respondents (N=16) .............................................................. 26 
Figure 4: In which field(s) is your organisation active? (N=16) ................................................ 27 
Figure 5: Have you perceived changes in the overall number of protective measures taken for 

vulnerable adults over the past 5 years? (legal practitioners and MSCAs surveys, N=63) / In 
your line of work, have you perceived changes in the number of vulnerable adults in need of 
protective measures (e.g., guardianship) over the past 5 years? (non-technical survey, N=16)
 .............................................................................................................................. 103 

Figure 6: In your opinion, how has the number of cases with cross-border implications with EU 

Member States related to the protection of vulnerable adults evolved over the past 5 years in 
your country? (legal practitioners and MSCA surveys, N=60).......................................... 104 

Figure 7: In your experience, what are the main challenges faced by vulnerable adults and their 
representatives in cross-border situations? (MSCA survey and non-technical survey, N=25)
 .............................................................................................................................. 107 

Figure 8: In your experience, what are the main challenges faced by vulnerable adults and their 

representatives in cross-border situations? Breakdown by type of Member State (MSCA survey 
and non-technical survey, N=22) ................................................................................ 108 

Figure 9: What are the main practical challenges you encounter as a practitioner in obtaining the 

recognition and /or enforcement of foreign protective measures? (N=34) ........................ 110 

Figure 10: What are the main challenges that you, as a competent authority, face in your country 

in cross-border cases? (N=10) .................................................................................... 111 

Figure 11: Are you aware of breaches of the fundamental rights of persons with intellectual 
disabilities, linked to the UNCRPD, that would have occurred in cross-border cases, in 
particular:  (All surveys, N=36) .................................................................................. 112 

Figure 12: Do you believe there is a need for more harmonisation of the jurisdiction rules? (legal 

practitioners survey, N=43) ....................................................................................... 123 

Figure 13: Do you believe that if all EU Member States were party to the 2000 Hague Convention 

there would still be a need for additional harmonisation of the rules on the recognition and 

7 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

enforcement of measures of protection, so as to further improve the movement of measures 
of protection between Member States? (MSCAs survey, N=16) ....................................... 124 

Figure 14: In your opinion, which of the following options would facilitate the cross-border 

protection of vulnerable adults the most? Please rank by preferred option from 1 (best option) 
to 9 (worst option) (MSCAs and legal practitioners surveys, N=49) ................................. 130 

Figure 15: In your opinion, what would be the best(s) method(s) to harmonise recognition 

proceedings (MSCAs and legal practitioners surveys, N=49) ........................................... 150 

Figure 16: In your opinion, how useful would it be to add the possibility of filling out multilingual 

dynamic forms on the European e-Justice portal for each of the following procedures? (These 
forms would also contain guidance and automatic filling of certain types of information) 
(MSCAs and legal practitioners surveys, N=52) ............................................................ 150 
Figure 17: To what extent do you agree with the following statement? ................................... 151 

8 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

List of abbreviations 

CC 

CJUE 

EU 

MS 

MSCA 

Civil Code  

Court of Justice of the European Union 

European Union 

Member State(s) 

Member States Competent Authority 

The Hague Convention  

Convention on the International Protection of Adults of 13 Jan-
uary 2000 

The Convention  

The  2000  Hague  Con-
vention  

UNCRPD  

United Nations Convention on the Right of Persons with Disa-
bilities 

9 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

Executive summary 

The study’s objective is to evaluate the main legal difficulties and practical challenges in 
the  cooperation  within  the  EU  in  the  field  of  the  protection  of  vulnerable  adults,  and  to 
assess the need for and the possible added value of a common legal framework for the 
protection of vulnerable adults in cross-border cases, either through mandatory ratification 
of the Hague Convention of 13 January 2000 on the International Protection of Adults (‘the 
Convention’) or via the adoption of an EU instrument to reinforce and streamline the judi-
cial cooperation in that area.  

To this end, the study examines the national laws and practices of the Member States with 
regard  to  the  roles  and  functioning  of  competent  authorities,  the  different  types  of 
measures  of  protection  provided  for  in  the  national  legal  systems,  the  main  procedural 
rules applying to these measures, as well as the private international law rules in place for 
cross-border cases. The data presented in the report is based on desk research, as well as 
on the results of an online survey targeted at national competent authorities, legal practi-
tioners and other stakeholders involved in the protection of vulnerable adults (e.g. NGOs, 
service providers).  

On the basis of the data collected, and in particular the information gathered on the existing 
problems in judicial cooperation between Member States and disparities in the current level 
of protection of vulnerable adults across the EU stemming from the absence of a common 
legal framework, the need, added value and feasibility of further action at EU level, which 
may take the form of a mandatory ratification of the Convention and/or of EU legislation 
on the matter, was assessed.  

Comparative analysis of the EU Member States regulatory systems 

EU Member States rules in domestic matters 

The report provides an overview of the rules applicable in domestic matters. The manner 
in which the protection of vulnerable adults is regulated in the domestic legal system allows 
indeed to obtain a basic understanding of the national context in light of the further as-
sessment of cross-border situations. 

In the Member States, the legislation on the protection of vulnerable adults is mostly em-
bodied  in  general  civil  law  instruments  (Civil  code,  Code  of  Civil  Procedure).  Less  fre-
quently, this area is covered in instruments relating to family law and the law of persons 
or in dedicated pieces of legislation. The concept of ‘vulnerable adults’ is overall defined in 
the Member States’ legal frameworks with common characteristics: a medical component 
(e.g., impairment, disability, illness) and a legal component (inability to defend one’s in-
terests,  absence  of  capacity  to  act);  however,  there  are  significant  discrepancies  in  the 
way each characteristic is detailed in the Member States,  with a direct impact on the 
scope of legal protection in each Member State, which differs depending on the 
persons covered. 

The analysis of the protection of vulnerable adults in the domestic legal systems carried 
out for this study encompasses three situations: 

where  measures  of  protection  are  taken  by  judicial  or  administrative  authorities, 
(1) 
i.e., a judicial or administrative authority appoints someone charged with assisting or rep-
resenting the vulnerable adult (e.g. a guardian, a curator, a deputy); 

where powers of representation (in the form of a private mandate) are granted by 
(2) 
the adult concerned, at a time when he or she is in a position to protect his or her interests;  

10 

Study on the cross-border legal protection of vulnerable adults in the EU 

where protection is regulated directly by the operation of the law, i.e. where a per-
(3) 
son, usually the spouse of the adult, is, pursuant to national rules, automatically vested 
with the power to  represent the adult in the  event that the latter is not in a position to 
protect his/her interest. 

Member States provide for a wide range of protective measures taken by judicial and 
administrative authorities (the competent authorities, both for the adoption and the imple-
mentation of protective measures, are in the vast majority of cases, part of the judiciary). 
Although there are some important trends between national measures of protec-
tion of vulnerable adults across Member States, there are also significant differ-
ences. Indeed, even between Member States that provide for the same type of measures, 
e.g., guardianship, there are differences with regard to the introduction of the proceedings 
(e.g.,  the  person  that  can  initiate  the  proceedings,  the  competent  authorities  for  taking 
the measure, the persons that can be appointed as a representative), the hearing of the 
adult (in some Member States, it is mandatory, in some it is not), the opposability of the 
decisions (not all Member States provide for registration/publication requirements, some 
provide for a specific timing, some do not), the conditions for review (although there are 
common grounds, conditions for review are quite different, e.g., the timing for reviewing 
the measure, the person that can request a  review), the  end of the protective measure 
(there are different grounds and proceedings); and finally the possibility of appeal (e.g., 
competent authorities, person that can appeal the decision).  

The nature of private mandates also varies across Member States. They may be specifi-
cally regulated to address the situation of vulnerable adults, be regulated as general man-
dates,  or  regulated  by  general  law  on  mandates.  These  scenarios  apply  in  18  Member 
States. The scope of private mandates is usually quite unrestricted, within legal boundaries 
(e.g. rules applying to the representative as defined by law, conflict of interest). In most 
Member States where it applies, it may cover personal and material interests, with excep-
tions for highly personal issues in five countries. The designation of the guardian is a key 
element covered in some Member States and the sole purpose of a mandate in others. The 
formal requirements set in the Member States’ legal frameworks for the establishment of 
mandates are very heterogenous. There is a slight tendency to prefer unilateral acts over 
contracts, but authentic acts and private deeds are overall equally represented among the 
mechanisms in place. Publication is never a condition for opposability of the mandate to 
third parties. Registration into registries is, however, a prerequisite in a number of Member 
States (even though the nature and content of the registries vary significantly across Mem-
ber States). The modification or end of the mandate usually follow the procedures set for 
the establishment of the mandate. Consequently, the procedures vary significantly from 
one Member State to another, from very simplified procedures (especially if the protected 
person is still capable) to a judicial procedure. The conditions to end the mandate beyond 
the  death  of  the  protected  person  also  diverge,  but  usually  encompass  changes  in  the 
situation or in the protection regime, and the protection of the vulnerable adult’s interest. 

Protection by operation of law is possible only in seven Member States. In three of them, 
such protection covers more or less the same scope as other types of representation. In 
the remaining Member States, it applies in the context of medical care, for the exercise of 
the patient’s right of the vulnerable adult. Persons who can be designated as representa-
tives under these circumstances are usually the closest relatives. Because of the nature of 
this type  of protection,  procedural rules are in  most  cases limited.  Protection applies  ex 
lege and thus does not need to be confirmed or recognised; modifications are not possible, 
and representation will end where the situation of the adult represented changes (death, 
recovery), or where another type of protection, i.e. a decision of a judicial or administrative 
authority, is adopted. Due to their nature, these measures are usually not recorded and 
apply de facto. 

Overall, significant differences remain in the approach taken in the regulation of 
the protection of vulnerable adults between those Member States which have recently 

11 

Study on the cross-border legal protection of vulnerable adults in the EU 

reformed their system (and tend to promote and support assisted decision-making by the 
vulnerable adult) and those which have not (and tend to regulate substitute decision-mak-
ing for the vulnerable adult). These differences are likely to result in difficulties in cross-
border  cases  involving  Member  States  with  different  approaches,  sometimes  at  the  ex-
pense of an efficient protection of the adult concerned. 

EU Member States rules in cross-border cases 

In order to ensure the protection of vulnerable adults in cases where more than one Mem-
ber State is involved, private international rules apply.  

The 2000 Hague Convention, which regulates cross-border situations concerning vulnera-
ble adults, has been ratified by ten Member States1, with Belgium being the last Member 
State  to  join  in  2020.  A  few  other  Member  States  have  signed,  but  not  yet  ratified  the 
Convention. This situation applies to Greece, Ireland, Italy, Luxembourg, the Netherlands 
and Poland. Greece, Ireland and Italy have undertaken concrete measures to advance in 
the ratification process. The rules applying to cross-border cases differ between the Mem-
ber States which are parties to the Convention, and the ones that are not.  

In the Member States which are parties to the Hague Convention, in addition to the 
rules  set  by  the  Convention,  some  elements  are  usually  provided  in  domestic  acts,  on 
either  international  private  law,  civil  (procedural)  law,  or  the  protection  of  vulnerable 
adults. The rules which determine the jurisdiction, and the applicable law, are those set 
out  in  the  Convention  (i.e.,  the  State  of  habitual  residence  of  the  vulnerable  adult  has 
jurisdiction, and the authorities apply their own law). The grounds for refusal (and enforce-
ment)  are  directly  regulated  in  Article  22,  paragraph  2,  of  the  Convention.  However,  in 
relation to the recognition and enforcement of measures adopted in another country, even 
though this is regulated by Chapter IV of the Convention, various procedures to recogni-
tion, with variable levels of complexity, apply depending on the Member State. The simple 
and rapid procedure for enforcement referred to in Article 25 paragraph 2 of the Convention 
is in place in three Member States. It  should  nevertheless be noted that the Permanent 
Bureau of the Hague Conference has no enforcement powers in case a party fails to comply 
with their international commitments. 

For those Member States which are not parties to the Convention, in 12 Member 
States, the rules on the cross-border aspects applying to vulnerable adults are governed 
by the general rules on private international law. Only in a few Member States is cross-
border protection of vulnerable adults as such regulated in domestic law. In these coun-
tries,  a  number  of  different  situations  apply,  depending  on  the  situation.  Jurisdiction  is 
based on the nationality of the person concerned in two Member States, on the habitual 
residence in five Member States, and both, or either of the two depending on the circum-
stances, in the remaining Member States. Recognition of foreign measures can take place 
either  by  operation  of  law  (in  four  Member  States)  or  by  judicial  recognition  (in  the  re-
maining Member States). In most States, to enforce the measures taken abroad, a decla-
ration  of  enforceability  by  a  judicial  authority  of  the  State  where  the  decision  is  to  be 
enforced is required. Only in four of the non-party States is an exequatur procedure not 
required. The grounds for refusal provided for in the national laws of the non-contracting 
Member  States  are  usually  comparable  to  those  provided  in  the  Convention.  In  some 
States, however, grounds for refusal are more limited; while, in others, additional or dif-
ferent grounds from those listed in the Convention are listed under national law. 

In sum, the analysis of the legal systems of the Member States point to numerous 
differences, both in the way the protection of vulnerable adults is ensured across 
Member States, but also in the manner in which cross-border cases are dealt with. 
With regard to cross-border cases, differences are observed between the Member States 

1 Austria, Belgium, Cyprus, the Czech Republic, Finland, France, Estonia, Latvia, Germany and Portugal. 

12 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

which are parties to the Convention and the ones which are not, but also among parties to 
the Convention. Consequently, there is a risk of conflicting provisions or parallel proceed-
ings in a same case, as well as a risk of confusion of the persons involved in a cross-border 
case.  

Practice in cross-border cases 

In the context of this report, stakeholders (authorities, practitioners and other key stake-
holders) have been surveyed in order to gain an understanding of the practical implemen-
tation of the regulatory systems described above, and of the challenges they experience 
in understanding and applying the existing rules.  

Use of protective measures in the Member States  

In order to understand the practical implications of the regulatory frameworks, it is neces-
sary to grasp the magnitude of the issue, i.e. the number of protective measures adopted 
across the EU, and of cases involving vulnerable adults with cross-border implications.  

Limited  data  is  available  on  the  number  of  protective  measures  adopted  in  the  Member 
States between 2015 and 2020 and the majority of national authorities indicated that they 
do not record information on cases with a cross-border element. However, based on the 
limited data available and on the overall perception of stakeholders, there appears to have 
been  an  increase  in  the  number  of  protective  measures  adopted  between  2015 
and 2020 (with an overall increase of 18 % across  eight Member States). At the same 
time, NGOs and medical/social care organisations have perceived an increase in the num-
ber of persons in need of protective measures and an increase in their cross-border mobil-
ity. Similarly, based on the limited data available, the number of private mandates ap-
pears to have been steadily increasing over recent years.  

Only two Member States provided data on cases of recognition and enforcement of foreign 
protective measures. In both, the number of requests for recognition and the number of 
foreign  protective  measures  recognised  reported  is  relatively  low.  Several  other  MSCAs 
also indicated that the number of cross-border cases has been very rare in recent years. 
However, one of the Member States which provided data has seen a five-fold increase in 
the number of requests for recognition, going from five requests in 2015 to 26 in 2020. In 
another Member State, which provided data on the number of requests received from other 
Member States party to the 2000 Hague Convention, the number of requests, though re-
maining low, has increased on average by 84 % per year over the five past years. Many 
legal practitioners have also perceived an increase in the number of cases with cross-
border implications in their line of work.  

Legal and practical challenges in cross-border cases 

Stakeholders  surveyed  have  been  asked  to  indicate  the  challenges  they  experienced  in 
cross-border cases, in order to understand the concrete difficulties raised by the various 
legal systems and their implementation across all Member States. Responses provided by 
stakeholders  in  Member  States  parties  to  the  Hague  Convention,  and  in  Member  States 
non-parties have then been compared to assess the impact of the Convention on the issues 
raised. 

Language barriers and uncertainty regarding the validity of legal documents were 
cited as key challenges faced by vulnerable adults and their representatives in cross-border 
situations.  Legal  uncertainty  and  varying  rights  from  one  Member  State  to  another 
were mentioned as key barriers to the cross-border mobility of vulnerable persons by NGOs 
active in the field of protection of vulnerable adults. According to stakeholders, vulnerable 
adults and their families often face difficulties in identifying which country has jurisdiction 
over specific matters in cross-border situations.  

13 

Study on the cross-border legal protection of vulnerable adults in the EU 

Lengthy legal proceedings and the non-recognition of foreign protective measures 
also seem to have adverse repercussions on and cause distress to vulnerable adults and 
their families. The majority of national authorities and legal practitioners indicated that the 
average length of cases with cross-border implications is longer than similar na-
tional cases, citing difficulties in obtaining information from all parties involved and dif-
ferences in jurisdictions as key reasons behind the complexity of such cases. Two MSCAs 
provided information on the average length of cross-border proceedings which range be-
tween 1 and 12 months. The majority of respondents to the survey considered that these 
issues result in vulnerable adults often facing financial losses and the inability to manage 
their financial affairs, along with delays in receiving adequate medical care and breaches 
to their fundamental rights through the non-respect of their wishes/preferences.  

Half of the respondents to the non-technical survey (NGOs and service providers) and legal 
practitioners indicated that vulnerable adults often or always need legal aid to meet the 
costs of court cases/legal representation abroad, while more than half believe that 
legal aid is not sufficient to cover all costs, as it does not cover costs of translation, certi-
fication of documents or travel and accommodation costs.  

Overall, on the issues above, respondents from Member States that have not ratified the 
2000  Hague  Convention  indicated  more  difficulties  than  those  from  Member  States  that 
have ratified the Convention. 

Over 70 % of legal practitioner respondents indicated that they face difficulties in un-
derstanding/accessing information in other countries and difficulties in entering into trans-
actions with third parties in the context of cross-border cases. More than half also experi-
enced lengthy proceedings, legal uncertainty and difficulties identifying the correct contact 
point in the other country. Respondents from Member States that have ratified the 2000 
Hague Convention and from those that have not ratified the convention highlighted similar 
types of challenges – with no statistically significant differences among both groups.  

National authorities appear to face fewer challenges. The main challenge reported is the 
difficulty in understanding/accessing information in other countries (80 % of respondents). 
A higher proportion of MSCAs from Member States that have not ratified the Hague Con-
vention reported difficulties in identifying the correct contact point in the other country and 
uncertainty  regarding the validity  of legal documents compared to  MSCAs from Member 
States that have ratified the Convention. 

Challenges linked to the functioning of the Hague Convention 

Finally, stakeholders from EU Member States parties to the Hague Convention were asked 
additional questions to understand the challenges related more specifically to the applica-
tion of the 200 Hague Convention.  

In terms of awareness. one authority respondent indicated that further promotion of the 
Convention  towards  legal  practitioners  was  necessary,  while  two  highlighted  the  limited 
number of cases where the Convention has been applied which leads to a general lack of 
experience among practitioners.  

Looking at the application of the specific provisions of the Hague Convention, most 
authorities and legal practitioner respondents did not experience particular issues in ap-
plying the general and specific provisions on jurisdiction, though the main issues high-
lighted were the unclarity over the notion of “habitual residence” and difficulties for com-
petent authorities to obtain knowledge about any measures already taken by competent 
authorities  under  Articles  5  to  8  of  the  Convention,  and  the  uncertainties  related  to  the 
transfer of residence ( transmission of information and of competence between the author-
ities  of  the  two  countries  involved).  Most  authorities  and  legal  practitioner  respondents 
also  did  not  experience  particular  issues  in  applying  the  provisions  on  applicable  law. 

14 

Study on the cross-border legal protection of vulnerable adults in the EU 

Several legal practitioners, however, did indicate that in practice it can be difficult to de-
termine which national law should be applicable in certain cases.  

The  position  of  authorities  is  more  mixed  regarding  the  recognition  of  cross-border 
measures, with three respondents stating that they have experienced issues and four stat-
ing they have not. The issues highlighted are notably the need for additional procedures 
despite the rules set under Article 22 of the Convention. On the other hand, no significant 
issues  were  reported  regarding  the  enforcement  of  cross-border  measures,  although 
three authorities mentioned difficulties in obtaining recognition and enforcement of foreign 
measures by financial institutions. Similarly, none of the authorities could provide data on 
the  number  of  cases  where  the  recognition  of  a  measure  was  refused  and  none  of  the 
legal practitioners have experienced such cases.  

It is noteworthy that none of the survey respondents, neither authorities nor legal practi-
tioners, indicated having experienced conflicts between the jurisdiction rules and the ap-
plicable law regarding confirmation of powers of representation (Article 15), except for 
one legal practitioner. 

Finally, none of the survey respondents, neither MSCAs nor legal practitioners, reported 
issues when requesting, issuing or presenting the certificates under Article 38, except one 
MSCA and a legal practitioner. The MSCA indicated that financial institutions are sometimes 
unwilling to accept the certificate, while the legal practitioner highlighted that it is compli-
cated  to  issue  a  certificate  due  to  different  national  provisions  that  must  be  taken  into 
consideration. 

Thus, overall, besides awareness, a limited number of issues were raised by stakeholders 
with regard to the application of the Hague Convention, though this is to be nuanced by 
the fact that stakeholders had limited experience dealing with cases falling under the Con-
vention.  

Potential for EU intervention 

No legislative measures have been enacted so far by the European Union to address the 
specific needs faced by vulnerable adults. However, over the last fifteen years, EU institu-
tions, stakeholders, legal practitioners and academics have expressed repeatedly their con-
cerns about this gap. Since 2008, the Council of the EU and the European Parliament have 
regularly underlined the need for action in that area, inviting Member States to ratify 
the Hague Convention. Both the European Commission and the Secretariat of the Council 
have since been active monitoring the steps taken by Member States towards the ratifica-
tion of the Convention. The EU institutions have continued being active in that area, most 
recently with the Council conclusions of the Justice and Home Affairs meeting of June 2021, 
which  invited  Member  States  parties  to  the  Convention  to  raise  awareness  and  Member 
States non-parties to ratify the Convention. Similar actions have been undertaken by other 
stakeholders, including the Hague Conference on Private International Law and academia.  

As explained above, disparities do exist across Member States regarding substantive and 
procedural rules, as well as private international law rules. Although the EU has, in princi-
ple, no competence to harmonise substantive and procedural law in the area of justice, the 
harmonisation of private international law rules does fall within the scope of the powers 
vested in the Union by Article 81 of the TFEU. With regard to the protection of vulnerable 
adults in the EU, the harmonisation of the private international law rules would ad-
dress a number of needs. This includes gaps and inconsistencies in the protection of the 
adults concerned (e.g. in case of unresolved conflict of jurisdiction), a limited reliability of 
future mandates (e.g. in case arrangements made in one Member States are not enforced 
in a second one), obstacles to the free movement of persons and to the proper functioning 
of the internal market (the absence of legal certainty affects mobility and exchanges), as 
well as in difficulties in the practical cooperation between Member States (the lack of com-
mon rules affect efficiency where more than one authority is involved). The need for more 

15 

Study on the cross-border legal protection of vulnerable adults in the EU 

harmonisation was also acknowledged by the majority of the respondents to our survey. 
More than half of the legal practitioner respondents to our survey believe there is a need 
for more harmonisation of the jurisdiction rules and of the rules on applicable law, to sim-
plify and speed up procedures. The majority of legal practitioners also believe that there is 
a need for more harmonisation of recognition and declaration of enforceability. Authorities 
on the other hand have a more mixed position. The majority believe that there is a need 
for further discussions at EU level to evaluate the necessity of EU action. 

The ratification of the Hague Convention 

Mutual recognition and enforcement of decision are based on the principle of reciprocity, 
and  require  a  uniform  and  systematic  application  of  common  rules.  The  ratification  of 
the  Convention  by  all  Member  States  would  either  fix  or  significantly  mitigate 
many of the shortcomings mentioned above, as well as ensure such reciprocity. Stake-
holders, practitioners and academics largely agree that a broad  ratification of the Hague 
Adults  Convention  2000  would  significantly  enhance  the  protection  of  vulnerable  adults 
across the Union, and address the needs identified.  

The intervention of the EU to ensure ratification is legally feasible. The Union cannot itself 
become  a  party  to  the  Hague  Adults  Convention  2000,  as  the  Convention  make  it  clear 
that the latter is only open to sovereign States, not to international organisations. There-
fore, for the Convention to form part of the EU acquis, the EU would need to authorise (and 
in fact oblige) the Member States to ratify or accede to the agreement in question ‘in the 
interest of the Union’. Whether the EU has the power to adopt a measure to that effect is 
debated. Various arguments may be put forward to support the view that the conclusion 
of the 2000 Hague Convention would fall within the non-exclusive external competence of 
the Union. Indeed, in accordance with the Treaty on the Functioning of the EU, the conclu-
sion  of  the  Convention  may  be  regarded  as  “necessary  in  order  to  achieve,  within  the 
framework of the Union’s policies, one of the objectives referred to in the Treaties”, and in 
this case, the objective of judicial cooperation in civil matters. 

The exercise of the Union’s external competence with a view to ensuring the ratification of 
the 2000 Hague Convention involves basically the same process followed for the 1996 
Hague Children Convention, under Council Decision 2008/431/EC of 5 June 2008. Article 
218 TFEU would apply. Unanimity would not be required, pursuant to a combined reading 
of  Article  218(8)  and  Article  81  TFEU,  since  the  protection  of  adults  does  not  belong  as 
such to family law. 

The adoption of the EU instrument 

Provided that all Member States have ratified the Hague Convention, even though the 
Convention works well, it could still be improved in some respects, and does not neces-
sarily address sufficiently the specific needs pertaining to the relations between 
the Member States of the EU, given the size and intensity of the cross-border mobility 
of individuals and assets in Europe. The enactment of a legislative measure regarding the 
international protection of adults should therefore be considered to complement the Hague 
Convention.  

The adoption of an EU instrument would in principle be compatible with Member States 
obligations under the Hague Convention, even though, for some specific issues, it may 
prove more difficult to assess whether the Union may regulate without hindering the func-
tioning of the Hague Convention (e.g. if the obligations applying to the Central authorities 
are different under the two instruments). 

With regard to the form of the instrument, with respect to the field of private international 
law, solutions can only realistically be achieved through legislative options as the flexibility 
afforded to States by soft-law mechanisms is not suited to the field, especially when dealing 

16 

Study on the cross-border legal protection of vulnerable adults in the EU 

with  international  procedural  law  aspects  (i.e.,  jurisdiction  and  recognition  and  enforce-
ment  of  judgments).  Based  on  the  instruments  already  existing  at  EU  level  to  regulate 
private  international  law  matters,  a Regulation would  be most suited  to  ensure  that 
the relevant rules are directly and uniformly applicable in a mandatory manner and require 
no action by the Member States to transpose them into national law.  

With regard to the content of the instrument, the experience drawn from the application 
of other private international law instruments adopted at EU level shows that the creation 
of a set of rules that are virtually identical to the Convention is not be advisable. Instead, 
additional, complementary rules in an EU instrument should be considered, as has 
been done in the field of international child abduction with the Brussels II bis Regulation2. 
Such an instrument would then cover address the shortcomings, develop specific aspects 
or complement the Convention.  

Provisions would include a key set of measures, such as the choice of the court by the 
adult in advance (before the incapacity occurs), the creation of an EU certificate of powers 
of  representation  (based  on  the  example  of  the  European  Certificate  of  Succession  and 
recent development in the field of maintenance), the adoption of common enforcement 
rules among Member States (with clear rules on exequatur), the acceptance and enforce-
ability of authentic instruments, rules on legal aid, and measures to facilitate commu-
nication between Member States competent authorities.  

Other measures could also be considered, such as the creation of an electronic European 
registry, or interconnection of electronic national registries of protection measures, the use 
of standard multilingual forms, the notification of information in relation to national law or 
judicial  cooperation  to  be  published  on  the  e-Justice  Portal;  the  facilitation  of  legal  aid 
application in cross-border cases, and digitalisation of the communications between central 
and competent authorities.  

2 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and 
enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Reg-
ulation (EC) No 1347/2000, OJ L 338, 23.12.2003. 

17 

 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

1  Introduction 

1.1  Project objective and scope 

The Hague Convention of 13 January 2000 on the International Protection of Adults (‘the 
Convention’)3 deals with the cross-border protection of vulnerable adults in international 
cases.  The  Convention  creates  a  comprehensive  set  of  rules  that  determine  the  State 
whose authorities are to have jurisdiction to take measures of protection and the law to be 
applied.  It  also  ensures  the  recognition  and  enforcement  of  measures  of  protection  be-
tween  Contracting  States  and  establishes  cooperation  between  the  authorities  of  those 
States. Whilst the Convention is generally regarded as a well-balanced and efficient instru-
ment,  it  is  currently  in  force  in  only  10  EU  Member  States  (Austria,  Belgium4,  Cyprus, 
Czech Republic, Estonia, Finland, France, Germany, Latvia, and Portugal). The EU cannot 
itself become a party to the Convention, since the latter is only open to sovereign States. 
There  is  currently  no  EU  legislative  measure  dealing  with  the  international  protection  of 
adults. Consequently, the rules applying to cross-border situations vary significantly across 
the Member States, and the need to harmonise has become more pressing with the con-
tinuous increase in the cross-border movements of individuals, including vulnerable adults, 
and their assets, within the EU.  

The study’s  overall objective is to evaluate the main legal difficulties  and practical  chal-
lenges in the cooperation within the EU in the field of the protection of vulnerable adults, 
and to assess the need for and the possible added value of a common legal framework for 
the protection of vulnerable adults in cross-border cases, either through mandatory ratifi-
cation of the Convention or via the adoption of an EU instrument to reinforce and stream-
line the judicial cooperation in that area.  

To this end, the study examines the national laws and practices of the Member States on 
the following aspects:  

• 

• 

the roles and functioning of competent authorities as well as the main procedural 
rules in the Member States (e.g., the introduction of proceedings, the persons en-
titled to request that measures of protection are taken or reviewed, the applicable 
procedural rules, notably as regards the hearing of the adult concerned);  
the different types of measures of protection provided for in the legislation of Mem-
ber States concerning the protection  of  adults  in the Member States (granted by 
courts or authorities);  

•  whether, and in which terms, the legislation of the various Member States provides 
that powers of representation may be granted by the adult concerned, either under 
an agreement  or by a  unilateral act, to be exercised when  such adult is not in a 
position to protect his or her interests;  

•  whether  measures  of  protection  are  recorded  in  official  registries  in  the  various 

• 

• 

• 

Member States, and the functioning of, and access to, such registries;  
the private international law rules currently applied in the various Member States 
and the conflicts that may arise from their operation in cases connected to two or 
more States;  
the operation of the Hague Convention in the Member State that have ratified it; 
and  
in addition, the functioning of cross-border cooperation in the absence of an inter-
national instrument (thus excluding Member States that have ratified the Conven-
tion). 

3 Available at https://assets.hcch.net/docs/c2b94b6b-c54e-4886-ae9f-c5bbef93b8f3.pdf.  
4 The Convention was ratified on 30 September 2020 and entered into force on 1 January 2021.  

18 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

The study highlights the progress made in the legal and administrative cooperation in the 
protection of vulnerable adults in the Member States that have ratified the Convention and 
identify the legislative gaps that affect the effectiveness and efficiency of this protection. 
Based on this, the study presents conclusions and formulate recommendations to address 
the issues identified, including with regard to the pertinence of a common framework in 
the protection of vulnerable adults in cross-border cases within the EU.  

This Final Report for the Study on the cross-border legal protection of vulnerable adults 
in  the  EU  (request  for  service  JUST/2020/JCOO/FW/CIVI/0114)  presents  the  findings  of 
the  study.  It  also  introduces  the  methodological  approach  (Section  1.2.1)  and  provides 
practical information on the implementation of the project, including the results of the data 
collection undertaken (Section 1.2.2) and the challenges experienced (Section 1.2.3). It 
then provides the findings of the data collection with regard to the regulatory framework 
in the Member States (Section 2) and practice (Section 3). Finally, the pertinence of rati-
fication of the Hague Convention and/or of an instrument at EU level is analysed (Section 
4). The annexes provide a comprehensive overview of the work carried out for the study, 
with: 

•  a glossary (Annex I) 
• 
• 

the country fiches for the 27 MS (Annex II); 
the database providing the sources of information and case-law identified (Annex 
III); 
the survey questionnaire (Annex IV).  
the list of stakeholders consulted (Annex V) 

• 
• 
•  a complementary analysis of the survey (Annex VI) 
•  a summary of the interview at EU level (Annex VII). 

1.2  Project methodology, outcome and challenges 

1.2.1  Methodology  

1.2.1.1  Overview of project tasks and inter-linkages 

Our methodology is structured around three phases: 

•  Phase 1 – Inception: phase aiming at ensuring a common understanding of the 
study with DG JUST and the refinement of the methodology and the data collection 
tools; 

•  Phase 2 – Data collection and analysis at national level: phase aiming at the 

collection of all relevant data and the subsequent analysis thereof;  

•  Phase 3 – Development of recommendations and conclusions: phase aiming 

at the development of recommendations and conclusions for the study. 

The figure below outlines the main features of each of these phases, including their objec-
tives, tools and tasks to be used for the completion thereof, meetings to be held with the 
European Commission, and the main project deliverables.  

19 

Study on the cross-border legal protection of vulnerable adults in the EU 

Figure 1: Overview of approach to methodology 

1.2.1.2 

Implementation of the methodology 

This section presents the work undertaken in the three phases presented above.  

Phase 1 Inception phase 

Preliminary  desk  research  was  completed  during  Phase  1  of  the  project.  Preliminary 
desk research served the following purposes:  

• 

• 

• 

identification and analysis of relevant literature (studies, reports, case-law, and ar-
ticles) at EU level  which may be used as a source  of information by  the national 
experts; 
identification of key sources of information at national level, particularly regarding 
law and jurisprudence; 
identification  of  relevant  stakeholders  in  the  context  of  protection  of  vulnerable 
adults at national level. 

Under  the  guidance  of  the  Project  Management  Team,  the  Research  Team  undertook 
preliminary  desk  research  to  review  all  previous  relevant  studies  and  extract  key 
information from these sources. The information compiled during this phase was included 
in a database, which is presented in Annex IV to this report.  

As  per  the  Terms  of  Reference,  a  kick-off  meeting  between  the  Commission  and  the 
Project Management Team was held at the end of the first month of implementation of the 
project. It covered in particular the context and objectives of the contract, questions and 
comments on the Draft Inception Report which was submitted before the meeting and the 
organisation of the work. 

Following the kick-off meeting, an internal workshop was held with the Senior Advisory 
Board. The meeting focused on three main points: 

• 
• 

the identification of gaps in the mapping of data sources; 
the definition of the scope and content of the consultation of stakeholders; 

20 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

• 

the structure of the reporting templates. 

On the basis of the discussions, the tools were further refined by the Project Management 
Team and revised by the Senior Experts on the Advisory Board, and presented in the Final 
Inception Report.  

Phase 2 Data collection phase 

Desk research 

The  desk  research  initiated  under  Phase  1  was  further  developed  under  Phase  2,  in 
particular at national level. Country Fiches were completed by national experts through 
desk research. The fiches aimed to provide comparable overviews of the 27 Member States’ 
national  legislations  concerning  the  protection  of  vulnerable  adults,  to  identify 
discrepancies and assess the need for increased cooperation within the EU. 

The results of the technical surveys (in particular the questions addressed to the Central 
Authorities  designated  under  the  Convention  and  competent  authorities  in  the  other 
Member States- see below) and interviews with Central Authorities (see below) were then 
used to both cross-check the results of the desk research and complete the Country Fiches. 

The  Country  Fiches  are  provided  in  Annex  III  to  the  Report.  In  addition  to  the  fiches, 
national experts  completed the  database presented in Annex IV with national case-law 
entailing cross-border judicial cooperation identified in their desk research as applicable.  

Stakeholder consultation 

The  stakeholder  consultation  was  carried  out  in  parallel  with  the  desk  research.  Two 
stakeholder  consultation  methods  were  used:  questionnaire-based  surveys  and  semi-
structured  interviews.  Both  the  surveys  and  interview  questionnaires  were  developed  in 
close cooperation with the Advisory Board and with the Commission.  

The questionnaire-based surveys aimed for the collection of detailed, quantitative and 
qualitative information to support the different tasks of the study. Two separate types of 
surveys were carried out: 

• 

technical surveys targeting central authorities / Member State competent authori-
ties (MSCAs) and legal practitioners; 

•  non-technical survey targeting representatives of professions specialised in the pro-

tection of adults, financial/care service providers and NGOs. 

The technical surveys covered primarily elements linked to legal frameworks (for national 
authorities)  and  practice.  Two  distinct  surveys  were  prepared  for  authorities  /  national 
competent authorities and legal practitioners. They contained some questions common to 
all  stakeholder  groups  and  some  others  tailored  specifically  to  each  of  the  stakeholder 
groups. In both cases, specific questions were asked depending on whether the stakeholder 
is from a Member State party to the Convention or not.  

A  shorter  non-technical  survey  focusing  on  understanding  the  practical  challenges 
encountered  by  vulnerable  adults  and  their  families  in  cross-border  situations  was 
disseminated to other potentially relevant stakeholders, such as guardianship associations, 
care providers, financial providers, and NGOs.  

In view of assessing the current state of play and recent evolution in the number and type 
of protective measures issued in the 27 Member States, a call for quantitative data was 
also  included  in  the  survey  to  the  Member  State  competent  authorities  and  legal 
practitioners. 

21 

Study on the cross-border legal protection of vulnerable adults in the EU 

The final version of the questionnaires is presented in Annex V to this report.  

Semi-structured interviews 

Semi-structured  interviews  were  carried  out  by  national  experts  to  complement  the 
information  collected  through  the  targeted  surveys  and  the  Country  Fiches.  While  the 
surveys  focused  on  factual  and  quantitative  information,  the  targeted  interviews  mainly 
related to more qualitative information on current practices.  

The results of the stakeholder consultation are presented in Section 1.2.2.  

Phase 3 Development of conclusions and recommendations 

Upon completion of the Interim Report, Phase 3 on the development of conclusions 
and recommendations was launched. On the basis of the data collection carried out in 
the previous phase, and in particular the information gathered on the existing problems in 
judicial  cooperation  between  Member  States  and  disparities  in  the  current  level  of 
protection  of  vulnerable  adults  across  the  EU  stemming  from  the  absence  of  a  common 
legal framework, the need, added value and feasibility of further action at EU level, which 
may take the form of a mandatory ratification of the Convention and/or of EU legislation 
on the matter, was assessed.  

Three different tools were used for this phase, namely an internal workshop, desk research, 
and  semi-structured  interviews.  The  phase  was  implemented  primarily  by  the  Senior 
Experts of the Advisory Board, with the support of the Project Management Team.  

The  internal  workshop  on  conclusions  and  recommendations  brought  together  the  members  of  the 
Project Management Team and the Advisory Board. It took place after the Research Team and Project 
Management Team had finalised the analysis of the collected data initiated for the Interim Report. The 
workshop aimed to: 

•  define the main elements of conclusions to be drawn from the previous phase on 

both mandatory ratification and adoption of an EU instrument;  
structure the conclusions; and  

• 
•  assess which areas need further desk research and which information can be with-

drawn from interviews.  

On that basis, the Advisory Board analysed the added value of a general ratification 
of the Hague Convention within the EU. The purpose of this task was to assess whether 
the information gathered in the previous phase would provide sufficient legal grounds to 
demonstrate an external competence of the EU, as such competence would enable the EU 
to oblige those Member States which have not ratified the Convention to do so. It resulted 
in  recommendations  on  legal  benefits  of  mandatory  ratification  on  judicial  cooperation 
presented in the present report.  

In addition, or alternatively to the compulsory ratification of the Convention, another pos-
sible action at EU level is the adoption of an EU instrument. Conclusions of the assess-
ment of the added value of additional EU legislation to facilitate judicial cooperation and 
recommendations on the type and scope of possible EU instrument to be adopted are also 
presented in this report.  

1.2.2  Stakeholder consultation 

1.2.2.1  Stakeholder contacted 

Targeted surveys 

The three targeted surveys were launched on 26 April 2021 and closed on 11 June 2021 following a 

22 

Study on the cross-border legal protection of vulnerable adults in the EU 

one-week deadline extension (the deadline for MSCAs was subsequently further extended to 28 June 
2021). The Project Management Team sent the targeted surveys to the relevant stakeholders via email. 
European level associations were contacted to act as distribution channels across their national level 
members and to encourage them to participate; national level stakeholders were identified through our 
team of national experts. 

Table 1 below shows the number of stakeholders targeted for each of the surveys along 
with the response rate obtained.  

Table 1: Number of stakeholders contacted 

Survey 

Number of organisations 
contacted 

Number of 
responses 

Response 
rate 

MSCAs 

27 

Legal practitioners 

130 (including umbrella 
organisations) 

Non-technical survey  515 

18 

50 

16 

67 % 

38 % 

3 % 

All 27 MSCAs were contacted to provide answers to the targeted survey. Legal practitioners 
include lawyers, judges, notaries and professional guardians, who were targeted through 
both European and national level associations of practitioners such as bar associations and 
chambers of notaries. For the non-technical survey, European and national level NGOs and 
associations providing care/support for elderly persons and persons with disabilities were 
targeted.  See  Annex  V  for  a  comprehensive  overview  of  the  specific  organisations  that 
were contacted.  

Interviews  

The  semi-structured  interviews  with  the  MSCAs  of  the  Member  States  party  to  the 
Convention  (Belgium,  Austria,  Cyprus,  the  Czech  Republic,  France,  Estonia,  Germany, 
Finland,  Latvia  and  Portugal)  were  launched  on  4  June  2021.  The  national  experts 
contacted  the  MSCAs  of  their  countries.  In  the  cases  where  the  MSCAs  did  not  respond 
directly, the national experts sent reminders.  

The national experts were able to conduct interviews with the MSCAs of Austria, Belgium, 
Cyprus,  the  Czech  Republic,  Germany,  Finland,  Latvia  and  Portugal.  The  authorities  in 
Estonia indicated that they felt they were not in a position to contribute meaningfully to an 
interview. With regard to France, it was not possible for the national expert to carry out 
the interview within the timeframe of submission of this report5.  

Following the request of the Commission at the Interim Meeting, Milieu prepared additional 
short interviews or questionnaires on the status of adhesion to the Convention in specific 
countries. The aim of these short interviews or questionnaires was to obtain information 
on the status of signature or ratification in the Member State and on the reasons for not 
yet adhering to the Convention.  

These questions were sent to the competent authorities of Greece, Spain, Ireland, Italy, 
the  Netherlands  and  Sweden.  It  was  possible  to  collect  the  relevant  information  for 
Hungary, the Netherlands, Italy, Ireland, Spain and Sweden.  

Table 2: Overview of responses to interviews 

Interview 

Number Member States 
contacted 

Number of 
responses 

Response 
rate 

5 The timeframe of the project did not allow the interview to be carried out.  

23 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

Parties to the 
Convention 

On ratification 

10 

7 

8 

6 

80% 

85.7% 

1.2.2.2  Profile of respondents to the survey 

MSCAs survey 

The survey targeted to MSCAs received 18 responses from the following Member States: 
Austria,  Belgium,  Croatia,  the  Czech  Republic,  France,  Germany,  Hungary,  Italy,  Latvia, 
Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovenia, Slovakia and 
Sweden.  

Legal practitioners survey 

The survey targeted to legal practitioners received a total of 50 responses. Respondents came from 15 
different Member States, shown in Table 3.  

Table 3: Country of establishment of legal practitioners (N=50) 

Member State 

Number of responses 

% of respondents 

France 

Italy 

Croatia 

Belgium 

Slovenia 

Portugal 

Austria 

Netherlands 

Romania 

Malta 

Slovakia 

Sweden 

Estonia 

Finland 

Latvia 

8 

7 

7 

5 

5 

3 

3 

3 

2 

1 

1 

1 

1 

1 

1 

16% 

14% 

14% 

10% 

10% 

6% 

6% 

6% 

4% 

2% 

2% 

2% 

2% 

2% 

2% 

The largest group of legal practitioner respondents (38%) are notaries or representatives 
of  notary  bodies,  followed  by  judges  (18%)  and  lawyers  (16%),  as  shown  in  Figure  2. 
Prosecutors represent 8% of respondents, while professional guardians/curators represent 
6% of respondents. 

24 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

Figure 2: Type of legal practitioner (N=50) 

Most respondents (66%) were individual practitioners, while 34% responded on behalf of 
an  association  of  practitioners.  Table  4  below  indicates  the  different  associations  of 
practitioners that responded to the survey.  

Table 4: Association of legal practitioners 

Association of practitioners represented 

Austrian Chamber of Civil Law Notaries 

Ministry of Justice and Administration 
(Croatia) 

Chamber of Notaries of Slovenia 

Public Prosecutor’s Office (Croatia) 

Châtellerault in France  

Regional Court in Poznan - Poland 

National Council Bar Association (CNB) - France 

The Supreme Court of the Republic of 
Slovenia 

Council of the Notariats of the European Union - 
CNUE 

The National Union of Notaries Public in 
Romania 

County State Prosecutor's Office - Croatia 

Federation of Belgian Notaries 

DGAJ - Portugal 

Flemish Bar Association 

Estonian Chamber of Notaries 

Dutch royal organisation of notaries 

Family Judges Association of Austria 

Non-technical survey 

The  non-technical  survey  received  16  responses  in  total  from  12  different  Member 
States, shown in Table 5.  

Table 5: Country of the non-technical survey respondents (N=16) 

Member State 

Number of respondents 

% of respondents 

Ireland 

Italy 

All EU Member States 

2 

2 

2 

13% 

13% 

13% 

25 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

Member State 

Number of respondents 

% of respondents 

Spain 

Romania 

Portugal 

Germany 

Slovenia 

Sweden 

Cyprus 

Belgium 

Malta 

Netherlands 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

6% 

6% 

6% 

6% 

6% 

6% 

6% 

6% 

6% 

6% 

The majority of the non-technical survey respondents (56%) are NGOs active in the field 
of protection of vulnerable adults and 25% are organisations providing social/medical care 
to vulnerable adults (see Figure 3). Respondents who answered ‘Other’ include a statutory 
body providing evidence-based policy advice to the government on disability matters; an 
organisation  providing  social,  employment  and  educational  care;  and  one  unspecified 
respondent.  

Figure 3: Type of non-technical respondents (N=16) 

More  than  half  of  the  non-technical  survey  respondents  (56%)  provide  advice/support 
related to protective measures to vulnerable adults, 44% provide care/support for persons 
with a disability and 38% care/support for the elderly/persons suffering with dementia (see 
Figure 4). Other fields of activity include advocacy and all areas related to disability.  

26 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

Figure 4: In which field(s) is your organisation active? (N=16) 

1.2.2.3  Level of responses 

Responses to the legal practitioner and non-technical surveys are relatively complete. On 
average, 80 % of legal practitioners and 88 % of non-technical survey respondents pro-
vided answers to all closed questions. However, a more limited number (around half of the 
legal practitioners and 75 % of the non-technical respondents) provided further information 
in the open text boxes to substantiate their answers. Only two legal practitioners provided 
examples  of  relevant  case-law  and  none  were  aware  of  any  statistics  on  the  number  of 
cases with cross-border implications.  

The level of responses received from MSCAs is more mixed. On average, 78 % of those 
not party to the 2000 Hague Convention provided all answers to questions in relation to 
the  national  PIL  rules;  80  %  of  those  party  to  the  Convention  provided  answers  to  all 
questions in relation to the Convention; and 71 % provided answers  to all questions  on 
possible EU action. On the other hand, only 64 % of MSCAs provided answers to all ques-
tions in relation to the general practice in the protection of vulnerable adults and only half 
provided answers to all questions on legal and practical challenges. In addition, very limited 
quantitative data on protective measures was provided by the MSCA. Only 10 MSCAs were 
able  to  provide  data  on  the  total  number  of  decisions  on  protective  measures  between 
2019-2020, with six providing a breakdown by type of measure, and only four could pro-
vide data on the number of private mandates. Only the Czech Republic, Luxembourg, and 
Portugal provided data on the number of foreign protective measures requested and rec-
ognised between 2019-2020. Furthermore, only five MSCAs provided examples of relevant 
case-law. 

1.2.3  Challenges 

Limited response rate to the consultations and incomplete answers  

The response rate to the different surveys is relatively low particularly for MSCAs and the 
non-technical  survey.  In  addition,  as  mentioned  in  Section  1.2.2.3,  a  limited  number  of 
respondents substantiated their responses within the open text boxes. As a result, only a 
limited  view  of  the  practical  situation  could  be  obtained  based  on  anecdotal 
evidence  and  this  limitation  should  be  borne  in  mind  when  interpreting  the 
results of Section 3. It should be noted, however, that most of the MSCAs that provided 
answers to the survey indicated that they are only aware of a limited number of cases in 
the field of cross-border protection of vulnerable adults – for example, one MSCA party to 

27 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

the  Hague  Convention  stated  that  there  have  been  no  cases  of  application  of  the 
Convention in the country. It is therefore likely that the limited response rate reflects 
the limited experience of legal practitioners in this domain.  

To mitigate the low response rate, the Project Management Team sent several reminders 
to all stakeholders and the survey deadline was extended by a week for legal practitioners 
and  non-technical  respondents  and  by  three  weeks  for  MSCAs.  For  the  non-technical 
survey,  several  targeted  organisations  responded  that  they  were  not  able  to  provide 
answers as they have no experience in the cross-border protection of vulnerable adults. 
Similarly,  no  financial  service  provider  was  able  to  respond  to  the  survey.  Following 
reminders  sent  by  the  Project  Management  Team,  one  pan-European  organisation 
representing financial service providers indicated that they could not provide input to the 
study.  Furthermore,  the  Project  Management  Team,  along  with  our  team  of  national 
experts, sent multiple reminders to the MSCAs to obtain their input to the survey. Several 
MSCAs subsequently provided answers. In addition, follow-up emails were sent to MSCAs 
that only provided partial answers to the survey. In most  cases, these MSCAs indicated 
that no information was available in relation to the missing answers or that the Member 
State was not able to provide a position on the issue and therefore could not answer all 
questions.  

Limited quantitative data available on protective measures 

In the same vein, very limited quantitative data on protective measures was provided by 
MSCAs and only one could provide data on foreign protective measures. The MSCAs that 
responded to the survey and did not provide data indicated that the information is not 
available  and  data  on  foreign  protective  measures  is  not  recorded.  In  addition, 
among those that provided quantitative data, data is not available across all years (2015-
2020) for all Member States. As a result, the analysis on the trends in the number 
of protective measures (Section 3.1.1) only covers the situation in nine Member 
States  over  a  four-year  period  (2014-2019),  which  cannot  be  considered 
representative.  As  a  mitigation  measure,  all  three  surveys  included  several  questions 
asking stakeholders for their perception on the overall trends in the number of protective 
measures  taken  over  the  past  years  and  on  the  number  of  cases  with  cross-border 
implications. Answers to these questions were used to complement the limited quantitative 
data and obtain an overall picture of the situation.  

Limited number of national case-law identified 

The  number  of  national  case-law  identified,  touching  upon  cross-border  protection  of 
vulnerable adults and the 2000 Hague Convention, is very limited. Indeed, the protection 
of vulnerable adults is a non-contentious matter. Therefore, the number of cases regarding 
cross-border issues  relating to the protection  of vulnerable adults is by definition  rather 
low.  

Our  methodology  included  both  desk  research  on  case-law  by  the  national  experts  and 
asking  the  MSCAs  to  provide  relevant  case-law.  During  desk  research,  national  experts 
searched through the national databases on case-law. Yet, in most Member States, no 
relevant jurisprudence could be identified. This is also exemplified in the responses 
of the MSCAs and practitioners. Of the MSCAs and practitioners who answered the surveys, 
only  six  were  able  to  provide  relevant  case-law.  Many  of  the  responding  stakeholders 
indicated  that  no  case-law  was  available  (for  instance  in  Finland,  Estonia,  Hungary  and 
Sweden).  Consequently,  the  overview  of  case-law  on  cross-border  cases  in  the  Member 
States (Section 3.2) only covers the situation in eight Member States. 

28 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

2  Comparative analysis of national regulatory systems 

This section presents an overview of the Member States national legislation in relation to 
the  protection  of  vulnerable  adults,  and  in  particular  a  general  overview  of  the  legal 
framework and competent authorities (Section 2.1), a summary of the types of protective 
measures in place and of the national registries to record such measures (Section 2.2) and 
a description of the private international law rules set by the Member States (Section 2.3).  

2.1  General overview 

2.1.1  National legal frameworks 

2.1.1.1  Overview of domestic law on the protection of vulnerable adults 

A few main trends can be observed when comparing the legislative framework of the 27 
EU  Member  States  regulating  the  protection  of  vulnerable  adults6.  In  the  vast  majority 
(197)  of  the  Member  States,  the  legislation  on  the  protection  of  vulnerable  adults  is 
provided in the Civil Code, very often in combination with the Code of Civil Procedure. In 
several countries, the Civil Code was amended by laws regulating this specific aspect in 
the past few years. 

• 

In Austria, the system of the protection of vulnerable adults  – previously known 
as “guardianship law” - was modernised by passing Federal Law 59/2017, the Sec-
ond Adult Protection Act (“Erwachsenenschutzgesetz”). It entered into force on 1 
July 2018 and introduced amendments to a number of key acts, including the Civil 
Code, the Civil Procedure Act and other civil law acts in different areas (e.g. Mar-
riage Act, Adult Protection Association Act, Accommodations Act), and procedural 
law acts (e.g. Notarial Code, Non-contentious matter Act). 

• 

•  An important Act amending the Civil Code and other state Acts was adopted on 21 
May  2021  in  order  to  bring  Spanish  Law  in  line  with  Article  12  of  the  UNCRPD 
(recognition  of  legal  capacity  for  persons  with  disabilities).  This  new  Act  (Ley 
8/2021, de 2 de junio, por la que se reforma la legislación civil y procesal para el 
apoyo a las personas con discapacidad en el ejercicio de su capacidad jurídica) was 
published  in  the  Official  State  Gazette  on  3  June  2021.  It  came  into  effect  on  3 
September 2021. 
In France, the legal framework was reformed several times, and most recently with 
Law no 2019-222 of 23 March 2019 and its application Decree No 2019-756 of 22 
July 2019, which reduced procedures before courts and set up rules for cross-border 
situations. In particular, this law introduced a single application that will enable the 
judge to choose the least restrictive protective measure best suited to the vulnera-
ble adult’s personal situation. Also, it enhanced the importance given to the French 
private mandate (mandat de protection future). 
In  Portugal,  the  relevant  provisions  of  the  Civil  Code  were  amended  by  Law 
49/2018 of 14 August 2018 in order to establish a completely new system which is 
built around the figure of the “accompanied adult”. The previous system, which had 
been in place since 1966, was considered inadequate in view of the social develop-
ments  of the last decades, namely the “very  considerable rise in the  standard  of 
living  of  the  population”,  the  “significant  increase  in  life  expectancy”  or  the  “de-
crease in the aggregating capacity of families”8. 

• 

6 A full overview of the relevant acts is produced in the individual Country Fiches provided in Annex III. 
7 AT, BE, CZ, DE, EE, EL, ES, FR, HU, IT, LU, LT, LV, MT, NL, PL, PT, RO and SK.  
8 Beleza, M.P., Brevíssimas Notas Sobre a Criação do Regime do Maior Acompanhado, em Substituição dos 

Regimes da Interdição e da Inabilitação – Lei N.º 49/2018, de 14 de Agosto 1, O Novo Regime Juridico do 
Maio Acompanhado, CEJ, February 2019.  

29 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

Alternatively  to  the  Civil  Code,  the  protection  of  vulnerable  adults  is  regulated  under 
statutory instruments in the field of family law and the law of persons. This is the case 
in Bulgaria, Croatia, Sweden and Slovenia. A Family Act applies as a complement to the 
Civil Code in Germany, Estonia, Poland and Slovakia.  

Only very few Member States have an act specifically regulating protection measures 
for vulnerable persons. In Cyprus, the relevant rules are provided in a number of acts 
on disabilities, including Law 127/2000 on persons with disabilities. The same applies in 
Croatia.  In  Denmark,  distinct  acts  and  orders  regulate  guardianship  and  other  relevant 
aspects,  such  as  future  mandates.  Acts  on  guardianship  are  also  enacted  in  Finland, 
Ireland, Poland and Sweden. In Ireland, the Assisted Decision-Making (Capacity) Act 2015, 
which  brings  significant  changes  to  the  schemes  for  the  protection  of  vulnerable  adults, 
though adopted several years ago, is not yet fully in force. Until this is the case, the old 
‘Lunacy  Regulation  (Ireland)  Act’  of  1871  continues  to  apply  for  key  aspects  relating  to 
wardships and enduring powers of attorney. According to the competent authorities, the 
Assisted Decision-Making (Capacity) Act 2015 will likely fully enter in force in 20229. 

Thus, despite common features, this issue is regulated differently from one Member State 
to another. In addition, in most Member States, the legislation has undergone reforms in 
the  past  ten  years,  in  some  cases  leading  to  significant  changes  in  the  scope  and  the 
procedures applying to protective measures, illustrating the constant evolution of this area 
of law necessary to adapt to societal changes.  

On one hand, the legislative changes did not necessarily cater for a harmonisation of the 
rules across the EU, as they usually corresponded to the need to adapt to very different 
judicial systems. On the other hand, they have in a few cases (e.g. Spain, France) been 
triggered  by  the  ratification  of  international  instruments,  thus  streamlining  the  level  of 
protection.  

Overall, however, significant differences remain in the approach taken in the regulation of 
the  protection  of  vulnerable  adults  between  those  Member  States  which  have  recently 
reformed their system (and tend to promote and support assisted decision-making by the 
vulnerable  adult)  and  those  which  have  not  (and  tend  to  regulate  substitute  decision-
making  for  the  vulnerable  adult).  These  differences  are  likely  to  result  in  difficulties  in 
cross-border cases involving Member States with different approaches, sometimes at the 
expense of an efficient protection of the adult concerned.  

2.1.1.2  Status of ratification of international conventions 

Protection of vulnerable adults is regulated in two main international instruments: 

• 

the  United  Nations  Convention  on  the  Rights  of  Persons  with  Disabilities 
(UNCRPD) was adopted on 13 December 2006 and entered into force at interna-
tional level on 3 May 200810. It aims ‘to promote, protect and ensure the full and 
equal enjoyment of all human rights and fundamental freedoms by all persons with 
disabilities, and to promote respect for their inherent dignity’11. The Convention is 
relevant in the context of this study, to the extent that it recognises and protects 
the fundamental rights to disabled persons, including vulnerable adults (see Section 
2.1.3 on this point). Rights recognised by the Convention which are within the scope 
of the  study include  equal recognition before the  law12 (support in  exercising 

9 Indication is given on the official website of the Decision Support Service9 that its service, and thus the new 
legal regime, will be operational by mid-2022. See https://www.decisionsupportservice.ie/getting-ready 
(visited in June 2021). 

10 https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html 

consulted on 2 July 2021.  

11 Article 1 UNCRPD. 
12 Article 12 UNCRPD. 

30 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

legal capacity and safeguards in the exercise of protective measures), and access 
to justice13 (effective role on proceedings and right to be heard) including in the 
context of administrative and judicial procedures. In addition, pursuant to a recent 
study, the interlinkages between the UNCRPD and the Hague Convention are such 
that the implementation of the latter would concretise some  requirements  of the 
former (see below); 
the Hague Convention of 13 January 2000 on the international protection 
of adults, which regulates cross-border situations and is at the core of this study.  

• 

The interlinkages between the UNCRPD and the Hague Convention have been a source of 
uncertainties for some time, the concern being that two instruments would not be compat-
ible,  in  particular  because  the  reference  to  “guardianship”  in  Article  3(c)  of  the  Hague 
Convention would be contrary to the principle of autonomy of the adult. The UN Special 
Rapporteur  on  the  Rights  of  Persons  with  Disabilities wanted  to  clarify  this  aspect  and 
launched a study on the Hague Convention’s interaction with the UNCRPD. The results of 
this  study  make  clear  that  there  is  no  conflict  between  the  Hague  Convention  and  the 
UNCRPD. On the contrary, the Hague Convention plays a positive role in the protection of 
vulnerable adults’ rights. 14  

Both instruments do not have the same nature. The Hague Convention is a private inter-
national law instrument. Hence, as it is common with private international law instruments, 
it does not provide for substantive laws (e.g. definition of key concepts, such as “guardi-
anship”, the protective measures to be adopted) and the Contracting States must apply 
their  own  substantive  rules  on  the  treatment  of  vulnerable  adults.  National  substantive 
laws of the Contracting States include domestic law as well as standards and obligations 
deriving  from  international  instruments,  such  as,  for  instance,  the  UNCRPD.  The  Hague 
Convention is thus a “tool” articulating the application of national substantive laws.  

Moreover, as underlined in the study, Article 49 of the Hague Convention addresses rela-
tions  between  the  Hague  Convention  and  other  treaty  obligations  such  as  the  UNCRPD. 
This article provides that “The Convention does not affect any other international instru-
ment  to  which  Contracting  States  are  parties  and  which  contains  provisions  on  matters 
governed  by  this  Convention,  unless  a  contrary  declaration  is  made  by  State  Parties  to 
such instrument.”  This article  suggests that the Hague Convention is  subordinate to the 
application of the UNCRPD. Since all Contracting States of the Hague Convention are also 
parties to the UNCRPD, they can ensure that the application of the Hague Convention is 
consistent with the human rights obligations provided by the UNCRPD.  

The table below provides a summary of the status of ratification of these Conventions in 
the Member States. 

Table 6: Status of ratification of the UNCRPD and 2000 Hague Convention 

MS  UNCRPD 

Hague Convention 

AT  Ratification: 26 September 2008 

Ratification: 9 October 2013 

Entry into force: 26 October 2008.  

Entry into force: 1 February 2014.  

BE  Ratification: 2 July 2009. 

Ratification: 30 September 2020 

Entry into force: 1 August 2009 

Entry into force: 1 January 2021  

BG  Ratification: 22 March 2012 

Not signed, nor ratified 

Entry into force: 21 April 2012 

CY  Ratification: 27 June 2011 

Ratification: 4 July 2018 

13 Article 13 UNCRPD. 
14 Roland, S., Keene A., Study interpreting the 200 Hague Convention on the International Protection of Adults 

Consistently with the 2007 UN Convention on the Rights of Persons with Disabilities, 3 June 2021. 

31 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  UNCRPD 

Hague Convention 

Entry into force: 27 July 2011 

Entry into force: 1 November 2018 

CZ  Ratification: 28 September 2009 

Ratification: 18 April 2012 

Entry into force: 28 October 2019 

Entry into force: 1 August 2012 

DE  Ratification: 24 February 2009 

Ratification: 3 April 2007 

Entry into force: 26 March 2009 

Entry into force:1 January 2009 

DK  Ratification: 24 July 2009 

Not signed, nor ratified 

Entry into force: 2009 

EE  Ratification: 30 May 2012 

Ratification: 13 December 2010 

Entry into force: 14 April 2012 

Entry into force: 1 November 2011 

EL  Ratification: 11 April 2012 

Entry into force:11 April 2012 

ES  Ratification: 3 December 2007 

Entry into force: 21 April 2008 

Greece  signed  the  Convention  on  18 
September  2008  but  has  not  ratified  it 
yet.  

The  Hellenic  Ministry  of 
Justice, 
Transparency  and  Human  Rights  has 
already  launched  the  process  of  setting 
up a special legislative committee for the 
ratification of the Convention. A timeline 
for  the  completion  of  the  procedure 
cannot, however, be determined  at this 
stage15. 

nor 

signed, 

but 
Not 
consultations 
legislative 
developments are ongoing at the time of 
writing this report16. 

ratified, 

on 

FI 

Ratification: 11 May 2016 

Ratification: 19 November 2010 

Entry into force: 10 June 2016. 

Entry into force: 1 March 2011 

FR  Ratification: 18 February 2010 

Entry into force:20 March 2010 

Ratification: 18 September 2008 

Entry into force: 1 January 2009 

HR  Ratification: 15 August 2007 

Not signed, nor ratified 

Entry into force: 27 June 2007. 

HU  Ratification: 20 July 2007 

Not signed, nor ratified17 

15 Information based on desk research. National authorities contacted in the context of this study have not re-

plied to our request for relevant information. The respective bill from 2018 is available at: http://www.open-
gov.gr/ministryofjustice/wp-content/uploads/downloads/2018/01/sxedio_hage.pdf; (2015) Council of the 
European Union, Updated compilation of comments from delegations concerning the ratification/accession to 
the 2000 Hague Convention on the International Protection of Adults and the application thereof. Available 
at: https://data.consilium.europa.eu/doc/document/ST-5381-2015-INIT/en/pdf; (2010) Council of the Euro-
pean Union, The Hague Convention of 13 January 2000 on the International Protection of Adults Compilation 
of comments from delegations concerning respectively ratification of or accession to the Convention and ap-
plication thereof as of November 2010. Available at: https://data.consilium.europa.eu/doc/document/ST-
18083-2010-INIT/en/pdf.  

16 According to the competent authorities contacted in the context of this study ‘Spain did not sign the Conven-
tion because it was not deemed necessary as Spain had legally solved the international protection of adults 
in a balanced manner. Further to very recent and relevant legislative developments at national level, inter-
departmental consultations on this matter are currently being carried out.’ This reply was provided in Au-
gust 2021.  

17 The competent authorities were contacted in the context of this study upon request form the Commission to 
enquire about the status of adoption of the Convention. They were not in a position to give information on 
that aspect however. Based on desk research, it can be said that there have been indications of the inten-
tion to join the Convention since 2016. Governmental Decision no. 1673/2016 on the concept of the new act 
on private international law already contained a reference to the Convention indicating the importance of 
adoption of the rules in line with the Convention due to Hungary’s intention to join the Convention. Ever 
since then, there is no official communication available on any preparation for joining the Convention. The 
text of the Government Decision in Hungarian is available under this link: https://net.jogtar.hu/jogsza-
baly?docid=A16H1673.KOR&txtreferer=00000001.txt  

32 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  UNCRPD 

Hague Convention 

Entry into force: 7 July 2007 

IE 

Ratification: 20 March 2018 

Entry into force: 19 April 2018 

Ireland  signed  the  Convention  on  18 
September 2008, but has  not ratified  it 
yet.  

Part 11 of the Assisted Decision-Making 
Act  2015  is  to  give  effect  to  the  2000 
Hague  Convention.  This  part  of  the 
statute,  while  enacted,  is  not  yet  in 
force. 

to 

the  authorities, 
ratified 

the 
According 
Convention  will 
‘on 
commencement of the Assisted Decision-
Making  (Capacity)  Act  2015’  which  is 
‘due to take place in June 2022’18. 

be 

IT 

Ratification: 15 March 2009 

Entry into force: 15 March 2009 

Italy  signed  the  Convention  on  31 
October 2008, but has not ratified it yet. 

to 

the  authorities, 
the 
ratification  of 

the 
According 
law 
procedure  of  adoption  of 
authorising 
the 
the 
Convention is in progress. The draft  bill 
was prepared by the Ministry for Foreign 
Affairs.  It was subsequently  sent to the 
Presidency  of  the  Council  of  Ministers 
and  awaits  discussion  in  the  Council  of 
Ministers  before  being  submitted  to 
parliamentary examination. Being aware 
of  the  political  importance  that  the 
European Union has given to this dossier, 
the  Ministry  sought  an  update  on  the 
the 
for  discussion 
calendar 
Presidency of the Council of Ministers19. 

from 

LT  Ratification: 18 August 2010 

Not signed, nor ratified 

Entry into force: 17 September 2010 

LU  Ratification: 26 September 2011 

Entry into force: 26 October 2011 

Luxembourg  signed  the  Convention  on 
18 September 2008, but has not ratified 
it yet. 

LV  Ratification: 1 March 2010 

Ratification: 24 November 2017 

Entry into force: 31 March 2010  

Entry into force: 1 March 2018 

MT  Ratification: 10 October 2012 

Not signed, nor ratified 

Entry into force: 9 November 2012 

NL  Ratification: 14 June 2016 

Entry into force: 14 July 2016 

the 
The  Netherlands  has 
Convention on 13 January 2000, but has 
not ratified it yet. 

signed 

The  reason  was  originally  budgetary. 
Meanwhile, the courts apply the rules of 
the  Convention  in  practice,  based  on  a 
ruling  of  the  Dutch  Supreme  Court  of 
2018. 
the 
Netherlands  does  so  far  not  see  an 
urgent need to ratify the Convention. In 
this context, the Dutch government has 
undertaken to consider what would be an 

consequence, 

As 

a 

18 Answer from the competent authorities of August 2021 following the request issued in the context of this 

study. 

19 Letter from the Ministry of Justice of 25 June 2021 following the request issued in the context of this study.  

33 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  UNCRPD 

Hague Convention 

appropriate  moment 
procedure 
Convention20. 

for 

to  start 
ratification  of 

the 
the 

PL  Ratification: 25 September 2012 

Entry into force: 25 October 2012 

Poland  signed  the  Convention  on  18 
September 2008, but has  not ratified  it 
yet. 

PT  Ratification: 23 September 2009 

Ratification: 14 March 2018 

Entry into force: 23 October 2009 

Entry into force: 1 July 2018 

RO  Ratification: 11 November 2010 

Not signed, nor ratified 

Entry into force: 30 November 2010  

SE  Ratification: 15 December 2008 

Not signed, nor ratified21 

Entry into force:1 January 2009 

SI 

Ratification: 24 April 2008 

Not signed, nor ratified 

Entry into force: 15 December 2008 

SK  Ratification: 26 May 2010 

Not signed, nor ratified 

Entry into force: 25 June 2010 

All Member States have ratified the UNCRPD between 2007 and 2018. Adhesion being also 
open to regional organisations, the European Union itself became a party to the Convention 
on 23 December 2010 within the limits of its competences22. The entry into force of the 
Convention on 22 January 2011 led to regulatory changes in a few Member States. This 
was  the  case  in  Spain,  as  explained  above,  but  also  in  Lithuania,  where  the  UNCRPD 
entered in to force in 2010, but substantial changes to the Civil Code and the Code of Civil 
Procedure  were  made  in  2016  to  bring  the  Lithuanian  legal  capacity  regime  in  line  with 
Article 12 of the Convention23.  

Ten  Member  States  are  parties  to  the  Hague  Convention,  with  Belgium  being  the  last 
Member State to join in 2020.  

A few other Member States have signed, but not yet ratified the Convention. This situation 
applies to Greece, Ireland, Italy, Luxembourg, the Netherlands and Poland. As indicated in 
the table, Greece, Ireland and Italy have undertaken concrete measures to advance in the 
ratification  process,  even  though  no  precise  timelines  for  ratification  have  been  set  for 
Greece  and  Italy.  Luxembourg  seems  to  consider  ratification  as  a  priority24.  The 
Netherlands seems to have fully stopped its ratification process, as the authorities consider 
the application of the Convention by national courts as sufficient at this stage.  

A few other Member States which had planned their adhesion to the Convention, such as 
Hungary and Sweden, also do not seem to have set a concrete schedule for adoption. In 
Hungary, a  Governmental Decision referring to the intention to join the Convention was 

20 Answer from the competent authorities of June 2021 following the request issued in the context of this study. 
21 The competent authorities were contacted in the context of this study upon request form the Commission to 
enquire about the status of adoption of the Convention. They indicated that a special investigator had been 
commissioned to consider a Swedish accession to the Convention. The report (SOU 2015: 74) proposes that 
Sweden accede to the Convention. The report has been submitted and is currently being prepared by the 
Ministry of Justice. Necessary analyses and considerations related to a possible accession to the Convention 
still remain. 

22 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chap-

ter=4&clang=_en#EndDec , consulted on 1 July 2021.  

23 See https://www.liberties.eu/en/stories/reform-incapacity-lithuania/3714.  
24 Information provided in the interview held with the Permanent Bureau of the Hague Conference on Interna-

tional Private Law for this study- See Annex VII.  

34 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

adopted in 2016, without further initiative however. In Sweden, a special investigator was 
appointed  to  assess  a  Swedish  accession  to  the  Convention;  and  a  report  advising  to 
accede  was  submitted  in  2015;  it  is  currently  with  the  Ministry  of  Justice.  Spain  on  the 
other hand has picked up the ratification process recently.  

Different  reasons  were  given  by  the  Permanent  Bureau  of  the  Hague  Conference  on 
International Private Law on the delays in the adoption of the Convention in some Member 
States25. Firstly, the implementation of the Convention was not a priority for a long time 
in  many  States;  taking  into  account  that  the  Convention  needs  to  be  approved  in  most 
States by the national parliaments, for which the topic of vulnerable adults in the private 
international  context  may have had a lower priority than  other private international law 
topics, such as the regulation of cross-border matters concerning children. In addition, on 
that specific issue, in many States, priority was given primarily to the implementation of 
the  UNCRPD.  Secondly,  several  States  expressed  the  need  to  review  their  domestic 
legislation on the protection of vulnerable adults to align it with the UNCRPD or to adopt 
legislation on powers of representation before becoming a Party to the 2000 Convention. 
For example, Poland and Slovakia have indicated that they want to review their legislation 
before ratifying the Convention, in particular to make sure their legislation is in line with 
the UNCRPD. 

The  Netherlands  is  at  this  stage  the  only  Member  State  which  has  clearly  indicated  its 
willingness  to  stop  the  ratification  process.  The  sole  application  of  the  Convention  by 
national court leads however de facto to a limitation of the application of the Convention, 
since the mechanisms set within the act, such as the designation of a Central Authority, 
and the benefits of multilateralism, and in particular reciprocity, are non-existent. The fact 
that the application only relies on jurisprudence also affects legal certainty.  

2.1.2  Description of the competent authorities 

This  section  provides  a  short  overview  of  all  authorities  involved  in  the  protection  of 
vulnerable adults, with a particular focus on the following actors: 

• 

• 

• 

the competent authorities making the decisions to impose protective measures (ju-
dicial and/or administrative authorities)  
the  competent  authorities  involved  in  the  implementation  of  the  protective 
measures  (judicial  and/or  administrative  authorities  deciding  to  apply  specific 
measures,  other (e.g.,  social)  authorities involved in the protection  of vulnerable 
adults) 
the authorities dealing with cross-border situations. 

25 Idem.  

35 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

Authorities making and implementing the decision to impose protective measures 

Table 7 below provides an overview of the role of the competent authorities in charge of adopting and implementing protective measures.  

Table 7: Overview of competent authorities and corresponding role  

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

AT  District  court  (court  of  first  instance)  acting  as  Pflegschaftsgericht 

(guardianship court):  

• 

appoints a judicial representative.  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

District  court:  for  elected  representation  and  legal  representation 
(protection granted by operation of law):  

• 

• 

• 

• 

exercises control over a representative;  

takes care of accounting; 

supervises the financial administration of the protected person; 

provides a judicial approval for certain specific matters. 

BE  The judge of the peace (vrederechter - juge de paix):  

The judge of the peace (vrederechter - juge de paix) :  

• 

imposes protective measures.  

•  monitors  the  implementation  of  judicial  and  extra-judicial  pro-

The notary together with the registrars to the judge of the peace:  

tective measures.  

• 

drafts private mandates.  

BG  The Regional court (окръжен съд) of the permanent address of the 

District court (районен съд):  

person:  

• 

declares partial or full incapacity  

The ‘guardianship  and  trusteeship  body’  embodied by  the  mayor 
of the permanent address of the person (or any other municipal council 
officer designated by them):  

•  makes an inventory of the property of the person concerned; 

• 

takes  measures  to  protect  the  vulnerable  person  and  his/her 
property until the appointment of the guardian or trustee; 

•  may entrust a person with temporary guardianship or trustee-

ship functions; 

• 

appoints a guardian or a trustee based on the decision of the 
court. 

• 

issues a permission for some acts to be exercised by the guard-
ian/trustee, such as acts of disposal of immovable property, of 
movable property through a formal transaction and via bank de-
posits, as well as transactions involving securities. 

CY  District court of residence of the person concerned:  

District court: 

• 

• 

• 

determines incapacity; 

appoints a guardian or a property manager; 

decides on compulsory hospitalisation. 

■  monitors and reviews the decisions it has initially taken.  

36 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

CZ  Regional court (court of the first instance): 

Regional court (court of the first instance): 

• 

• 

limits the legal capacity of an adult person;  

• 

competent for the implementation of protective measures.  

imposes protective measures to such a person. 

DE  The Custodianship court (Betreuungsgericht), which is a department 

of the Magistrate Court (Amtsgericht): 

Custodian authorities (designated by Länder laws at the local level of 
districts and independent cities): 

• 

takes decisions concerning custodianship matters.  

• 

• 

in most Länder: "Betreuungsstelle" (custodian office) (Bavaria, 
Hesse, Lower Saxony, North Rhine-Westphalia) or "Betreuungs-
behörde"  (custodian  authority)  (Brandenburg,  Saxony-An-
halt), are often part of the youth welfare offices, sometimes also 
part of  the social  welfare  or health offices;  only in a few large 
cities, separate custodian offices;  

in the city States: offices determined by special regulations due 
to their special administrative structure (Berlin: district offices; 
Bremen:  Office  for  Social  Services;  Bremerhaven:  Magis-
trate; Hamburg: no regulation in Land law, but tasks are per-
formed by the  Authority for Labour,  Health  and Social  Af-
fairs).  

Are in charge of: 

• 

• 

• 

• 

exceptional execution of custodianship for a vulnerable person;  

general tasks in relation to counselling of custodians; 

assistance to the custodianship court (ascertaining facts for the 
court, appointing custodians vis-à-vis the court, rights of appeal 
against court decisions, presentation tasks); 

public  certification  of  signatures  and  hand  signs  under  health 
care powers of attorney and care dispositions; 

•  management of custodianships and procedural custodianships by 

employees of the custodianship authority; 

• 

additional tasks according to Land law (e.g. organisation of local 
custodianship working groups). 

DK  Agency of Family Law  (Familieretshuset) under the Danish  Ministry 

Agency of Family Law: 

of Social Affairs and Senior Citizens: 

• 

decides and imposes protective measures, including guardian-
ship and co-guardianship.  

• 

implements protective measures. 

Danish Civil Agency (Civilstyrelsen): 

Civil district court  

37 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

• 

decides and imposes measure of deprivation of legal capacity. 

• 

part of the Ministry of Justice, handles among other areas com-
plaints regarding guardianship and future mandates. 

EE  County court (first instance court): 

• 

• 

• 

imposes protective measures; 

appoints a representative (a lawyer) to an adult with restricted 
active legal capacity;  

orders an expert assessment in order to determine the need for 
appointment of a guardian for such person; 

•  may  order  the  rural  municipality  government  or  city  govern-
ment, where the person in need of guardianship lives to collect 
and present to the court information needed for the establish-
ment of guardianship.  

The rural municipality government or city government: 

• 

provides,  in  proceedings,  its  opinion  on  who  to  appoint  as 
guardian, on changing the scope of duties of the guardian or on 
changing the guardian. 

EL  Court of first instance of habitual residence of the person concerned:  

District court: 

• 

• 

• 

decides on the placement of a person under judicial support;  

•  monitors and reviews the decisions it has initially taken. 

appoints a judicial assistant, or assign association or institution 
for judicial support; 

decides on involuntary hospitalisation. 

The competent social service issues a report on the necessity of the 
measure  and  the  suitability  of  the  judicial  assistant  or  of  the 
organisation to which the judicial support is going to be assigned to be 
taken into account by the Court.  

The prosecutor is responsible in the case of involuntary hospitalisation, 
to order the transfer of the patient to an appropriate mental health unit 
for  the  necessary  examinations.  Through  this  procedure  of  necessary 
examinations, the prosecutor can provide evidence of the person’s state 
of mental health to the Court. 

ES  The Court of first instance (Juzgado de Primera Instancia) where the 

vulnerable person resides: 

The Court of first instance (Juzgado de Primera Instancia) where the 
vulnerable person resides: 

• 

imposes protective measures, unless the measure is voluntary. 

• 

is involved in the implementation of protective measures.  

38 

 
MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

FI 

The Digital and population data services agency (DVV) or, in Åland, 
the Åland state agency based on the act on the autonomy of Åland: 

• 

• 

is competent on the power of attorney-cases, including the rat-
ification of the document and supervising the persons entrusted 
with the power of attorney; 

decides on guardianship, as the sole jurisdiction (when the per-
son already has a guardian and due to the death of the guardian 
or for other reason finds himself without a guardian, and sec-
ondly, when the preconditions for appointing a guardian are met 
and the person in question -and he or she is capable of under-
standing the meaning of the matter- asks for a certain person 
to  be  appointed  as  his  or  her  guardian),  or  together  with  the 
district court; 

•  may issue a temporary guardian when the guardian is tempo-

rarily prevented from performing their duties. 

The district court: 

• 

• 

shall make the final decision on the DVV application on appoint-
ing a guardian in all cases where the DVV does not have sole 
jurisdiction;  

has sole jurisdiction to  restrict a person’s  competence  (where 
appointing a guardian is not sufficient). 

FR  The  Protection  litigation  judge  (juge  des  contentieux  de  la 
protection)  of  the  “judicial  court”  (tribunal  judiciaire)  (formerly 
the“guardianship judge” (juge des tutelles)) is a magistrate of the court 
of  the  first  instance  specialising  in  legal  measures  relating  to  the 
protection of adults, which: 

• 

imposes protective measures (family empowerment; safeguard 
of justice; curatorship; guardianship). 

Study on the cross-border legal protection of vulnerable adults in the EU 

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

Public  guardianship  offices  are  part  of  legal  aid  and  public 
guardianship districts. They are structurally under Ministry of Justice and 
offer guardianship services, typically for people who do not have a close 
relative or other person suitable to act as their guardian.  

The Protection litigation judge is also involved in the implementation 
of protective measures.  

Along  with  the  judge,  the  public  prosecutor  exercises  general 
supervision  of  protective  measures  in  his  or  her  jurisdiction.  Both  the 
judge  and  the  public  prosecutor  may,  for  instance,  visit  the  protected 
person or his or her representatives and ask the latter to provide them 
with any information they require.  

The  Family  Council  (Conseil  de  famille)  is  also  involved  in  the 
implementation of protective measures. This is an assembly of relatives 
and qualified persons, responsible for authorising certain important acts 
carried  out  on  behalf  of  the  person  under  guardianship.  The  Family 
Council is chaired by the competent judge.  

HR  The municipal court  

• 

takes decisions on the restriction of the legal capacity.  

39 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

The welfare centre: 

• 

• 

appoints a special guardian on an interim basis in the capacity 
of defence counsel when the court proceedings are instituted– 
provided  that  the  individual  for  whom  the  proceedings  have 
been initiated has not authorised a proxy; 

issues a decision on placing the person under guardianship and 
appointing a guardian following the court decision depriving the 
person of legal capacity. 

HU  The civil court (district court – járásbíróság): 

• 

• 

takes the decision to limit a person’s capacity to act;  

places an adult under guardianship.  

The  guardianship  authority  (at  county  level  and  for  Budapest  – 
Kormányhivatal): 

• 

appoints a guardian to the person based on the decision of the 
court. 

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

The  guardianship  authority  (at  county  level  and  for  Budapest  – 
Kormányhivatal): 

• 

oversees the activities of the appointed guardians.  

IE  Under the current system: 

The High Court: 

Under  the  system  established  by  the  Assisted  Decision-Making 
(Capacity) Act 2015  

• 

has a supervisory role for the power of attorney system.  

The Court: 

The Office of the Wards of Court (office of the High Court) 

• 

receives applications and administers the ward of court system.  

Under  the  system  established  by  the  Assisted  Decision-Making 
(Capacity) Act 2015  

The Court: 

•  will appoint decision-making representatives (strongest form of 

support). 

The Director of the Decision Support Service26: 

•  will  assist  in  making  decision  support  arrangements  (i.e.  all 

types of protective measures); 

•  will check that decision-making arrangements (strongest form of 
support) are satisfactorily implemented on an ongoing basis;  

•  modify/end decision-making representation; 

• 

end registered powers of attorney. 

The Director of the Decision Support Service: 

•  will  monitor  the  implementation  of  decision  support  arrange-

ments. 

26 The relevant statutory provisions for this new competent authority are in force, and the new authority is due to begin functioning in 2022. 

40 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

•  will  review  and  certify  decision-making  assistance  agreement 
(softest  measure),  register  co-decision-making  agreements, 
and enduring powers of attorney. 

IT 

The  Civil  Court’s  tutelary  judge  (Giudice  Tutelare)  sitting  in  each 
Tribunal of the State: 

The Civil Court’s tutelary judge: 

•  monitor  the  implementation  of  protective  measures,  including 

• 

• 

declares the legal incapacity of an adult;  

the supervision of guardians. 

adopts  protective  measures,  including  the  appointment  of 
guardians.  

The Public Prosecutor: 

• 

is notified and participates in adult protection proceedings.  

Operators of the national health and social services directly involved 
in the care and assistance of a person have an obligation to inform the 
tutelary judge and the Public Prosecutor where they are aware of facts 
that make it appropriate to open the support administration procedure. 

LU  The guardianship judge (functions exercised by a judge of the youth 

court in whose jurisdiction the adult is domiciled): 

•  may open a guardianship or curatorship procedure ex officio; 

• 

appoints an official guardian or curator;  

•  may appoint a special agent to carry out an act or a series of 
acts, within the limits of what a guardian may do, without the 
authorisation of the family council;  

• 

pronounces a safeguard of justice measure;  

•  may designate a proxy for certain types of acts for a safeguard 

of justice. 

LT 

The Civil court (District court - apylinkės teismai): 

• 

• 

• 

issues  the  decision  to  limit  a  person’s  capacity  to  act  (using 
medical and legal criteria);  

puts in place or ends guardianship or curatorship;  

appoints or dismisses guardians or curators.  

-  may  propose  ex  officio  to  the  vulnerable  adult  to  enter  into  an 
assistantship agreement where there are no grounds to declare a person 
as incapacitated or partially incapacitated.  

The  guardianship  judge  exercises  general  supervision over the legal 
administrations and guardianships and curatorship within its jurisdiction, 
and together with the State prosecutor of the place of treatment, may 
visit or have visited the protected adults. 

For  the  guardianship,  four  types  of  actors  can  be  involved  in  the 
implementation  of  the  protective  measure:  the  guardian  or  the  legal 
administrator, the subrogated guardian and the family council.  

For  the  curatorship,  only  the  curator  is  in  charge  of  implementing  the 
protective regime.  

Municipal  authorities  as 
for 
implementation of judicial and extra-judicial protective measures: 

the  controlling 

institutions 

the 

• 

oversee  whether  the  appointed  guardians,  curators  and  assis-
tants carry out their duties appropriately (except for the vulner-
able adults’ proprietary interests). 

The independent Commission for Reviewing the Status of a Person 
Without Capacity:  

• 

• 

carries out an annual review of a person’s incapacity;  

petitions the court to review decisions of incapacity.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

The  Lithuanian  Forensic  Psychiatry  Service  provides  expertise 
when  making  and  revising  decisions  on  incapacity,  to  certify  medical 
conditions of vulnerable adults.  

Depending on the number of incapacitated persons, there can be several 
Commissions  in  one  municipality  or  one  Commission  across  several 
municipalities. 

Social workers from municipal authorities’ departments for social 
services issue an assessment to the Court on whether the vulnerable 
adult whose capacity is to be limited is able to take care of themselves. 

LV  The  Latvian  Orphans'  Courts  (LV:  Latvijas  Bāriņtiesas)  which  are 
administrative  organisations  established  by  a  municipality  or  local 
government.:  

•  make decisions on the adoption of a trusteeship measure; 

• 

provide assistance to an incapacitated person who has applied 
for assistance to an orphan court;  

The Latvian Orphans' Courts:  

• 

• 

examine submissions and complaints, including regarding the ac-
tions of a parent, guardian, or foster family;  

co-operate with other orphans' courts, long-term social care and 
social rehabilitation institutions, health care and education insti-
tutions, social services and police institutions in order to ensure 
the  protection  of  the  rights  and  interests  of  incapacitated  per-
sons;  

MT  The Guardianship Board: 

The Guardianship Board: 

• 

determines  whether  a  guardian  shall  be  appointed  (issue  a 
guardianship order).  

The Court of Voluntary Jurisdiction: 

• 

determines whether a person shall be interdicted and incapaci-
tated.  

• 

• 

is responsible for the implementation of the guardianship order, 
i.e. shall order that a hearing for the review of the guardianship 
order shall be held within a specified period of time, which shall 
not be longer than 2 years;  

is also responsible to order the substitution of a guardian at any 
point in time when there is a good and sufficient cause;  

•  may be asked for advice by the guardian on matters relating to 
the guardianship order or the exercise of the functions, obliga-
tions and duties of the guardian; 

• 

• 

is responsible to revoke a guardianship order;  

shall appoint a person to investigate the case when it receives 
information  that  the  person’s  (under  guardianship)  physical, 
emotional or mental health is suffering.  

The Court of Voluntary Jurisdiction: 

• 

ensures the implementation of the measures for  interdiction or 
incapacitation. 

NL  The Subdistrict Court (kantonrechter): 

The Subdistrict Court: 

• 

is responsible to impose measures of guardianship, fiduciary ad-
ministration or mentorship. 

42 

 
MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

Study on the cross-border legal protection of vulnerable adults in the EU 

• 

is  the  competent  supervisory  authority  throughout  the  imple-
mentation  of  guardianship,  fiduciary  administration or  mentor-
ship; 

•  may conduct periodic status inquiries;  

•  must approve certain predetermined actions in advance (for in-
stance for selling or establishing rights on real estate, gifts, ap-
plying for loans); 

•  may hear the guardian, administrator or mentor at all times and 
may request information, such as information regarding the fi-
nancial administration of the person concerned, from the guard-
ian, administrator or mentor. 

Provincial Courts (sądy okręgowe) - in a panel of three judges- (court 
of the domicile of the person who is the subject of incapacitation, and if 
none, of habitual residence court in whose district the event giving rise 
to the proceedings took place in case of revocation): 

• 

review and revoke incapacitation. 

PL  Provincial Courts (sądy okręgowe) - in a panel of three judges- (court 
of the domicile of the person who is the subject of incapacitation, and if 
none, of habitual residence): 

• 

examine cases of legal incapacitation. 

The proceedings are conducted in the presence of the prosecutor.  

Since 2007, when the regulations were amended, non-governmental 
organisations,  whose  statutory  tasks  include  the  protection  of  the 
rights of persons with disabilities, providing assistance to such persons 
or the protection of human rights, can join the proceedings at any stage 
upon their own initiative. 

The guardianship court (sąd opiekuńczy), i.e. district family court (pl. 
sąd rejonowy rodzinny): 

• 

appoints a guardian for a disabled person at the request of the 
provincial court, which dismissed the application for incapacita-
tion, stating that it would be an excessive restriction of the per-
son’s  independence,  recognising,  however,  that  the  person 
needed help to handle their affairs. 

PT 

Judicial courts: 

• 

Judicial courts: 

•  make the decisions to impose protective measures; 

■  make a periodic review of the measures. 

• 

determine the specific measures. 

RO  Courts  of  law  (Court  of  first  instance  within  whose  territorial 

jurisdiction the protected person has his domicile): 

Administrative  authorities  do  not  have  any  duties  related  to  the 
implementation of the protective measures. The National Authority for 
the Rights of the Disabled and of Children and for Adoptions is the 

43 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

•  make  decisions  to  impose  protective  measures,  i.e.  institute 

guardianship and curatorship.  

The National Institute of Legal Medicine: 

• 

provides a medical advice to the court shall rely on medical au-
thorities, e.g., when analysing the degree of disability affecting 
the vulnerable person and making protective measures neces-
sary. 

The Tutorial Authority, which a duty of the mayor: 

• 

is obliged to provide the court with a report on the psychological 
and social background of the  person  concerned  (‘ancheta psi-
hosociala’).  

SE  First instance courts: 

•  make the decisions to impose protective measures in Sweden, 
i.e. either appoint a conservator (god man) or an administrator 
(förvaltare).  

SI 

Local  courts  (okrajna sodišča) (there are  44 local courts in  Slovenia 
and the territorial jurisdiction is determined based on the domicile of a 
person who is put under guardianship): 

• 

decide on the placement of an adult under guardianship and on 
the nomination of a guardian.27.  

The Social Work Centre or the authority with which the proceedings 
are conducted (e.g. courts): 

• 

appoint a guardianship for special cases or a guardian for spe-
cific kinds of tasks is appointed. 

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

national  administrative  authority  responsible  for  public  policies  in  the 
field of the protection of adults, implementing in Romania the relevant 
international  treaties  and  convention,  but  is  not  entitled  to  carry  out 
specific measures.  

The  chief  guardian  (överförmyndare)  or  chief  guardian  board 
(överförmyndarnämnd)  appointed  by  each  municipality  (or  a  group 
thereof):  

• 

is a supervisory local authority handling cases on administrator-
ship and conservatorship.  

County  administrative  boards  supervise  the  activities  of  chief 
guardians. 

The  Social  Work  Centres,  which  are  specialised  in  matters  of 
guardianship: 

• 

• 

• 

• 

• 

• 

oversee the execution of a court’s decision (i.e. supervise guard-
ian’s work); 

cooperate with other relevant authorities; 

propose to the court to start a procedure or to change a guard-
ian; 

participate in the court proceedings (if not already as an appli-
cant); 

propose a guardian or act as a guardian; 

give obligatory consent to certain legal acts of the guardian; 

27 Under the old Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih) decision on guardianship was a two-track decision with the courts decid-
ing on the need for a guardian by a decision on the (full or partial) deprivation of legal capacity and Social Work Centres (Centri za socialno delo) deciding on the nomi-
nation of a guardian. 

44 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Competent  authorities  making  the  decisions  to 

impose 

protective measures  

Competent  authorities  involved  in  the  implementation  of  the 
protective measures  

• 

• 

• 

oversee and supervise guardians’ work (e.g. review the guard-
ian’s report, decide on a potential award); 

decide on guardianship for special cases; 

appoint a collision guardian. 

SK  District courts: 

District courts: 

•  make the decisions to impose protective measures (restriction 
of legal capacity, appointing of a guardian and decision on the 
detention in an inpatient facility)  

•  monitor the implementation of measures. 

45 

Study on the cross-border legal protection of vulnerable adults in the EU 

Authorities making the decision to impose protective measures are, in the vast majority 
of cases, part of the judiciary. Only in Denmark, Finland, Latvia and Malta28, the decision 
is  made  by  an  administrative  authority,  but  not  necessarily  for  all  measures;  measures 
with the greatest impact on the adult are taken by a court in Denmark, Finland and Malta. 
The same is foreseen in the future Irish system. In Slovenia, while local courts are com-
petent  in  most  cases,  the  Social  Work  Centre  may  appoint  guardians  in  certain  specific 
cases.  

Where  Courts  take  the  decision,  usually  the  court  of  first  instance  competent  in  civil 
matters  (e.g.  district  court,  county  court,  regional  court)  will  adopt  the  measure.  In  a 
number of Member States, a judge or chamber of the Court is dedicated to the adop-
tion of protective measures: a guardianship/custodian court is competent in Austria, Ger-
many and Poland, the ‘Orphan’s Court’ in  Latvia, a ‘protection litigation judge’, ‘tutelary 
judge’, ‘guardianship judge’ is competent in France, Italy and Luxembourg.  

In  Bulgaria,  Croatia  and  Hungary,  a  two-tiered  system,  whereby  the  Court  declares 
incapacity, and an  administrative  authority  designates the guardian, curator  or other 
representative,  is  in  place.  The  administrative  body  is  a  local  authority,  a  guardianship 
authority, or social services.  

Local  authorities,  including  local  social  and  health  services,  also  provide  experts’ 
opinions in a few Member States, such as Estonia, Lithuania or Romania. The mayor acts 
as the ‘guardianship authority’ in Romania and Bulgaria. NGOs may also be associated 
to the procedure in Poland. National health services provide medical advice or opinion to 
the court in Lithuania and Romania. The prosecutor also plays an active role in the pro-
cedure in Greece (for involuntary hospitalisation), in Italy and in Poland. Social services 
may trigger a procedure for protective measures in Italy; and parties to the procedure in 
Greece. In Belgium, the notary is competent to draft private mandates.  

Authorities involved in the actual implementation of the measures (e.g. monitoring) 
are either administrative or judicial authorities.  

There are dedicated administrative authorities (e.g. custodian/guardianship authori-
ties) in Germany, Hungary, Latvia, Sweden and Finland. In Slovenia, Social Work Centres 
oversee the  execution  of the court’s decision.  In Lithuania, municipal authorities control 
appointed  guardians,  curators  and  assistants,  while  an  independent  commission  carries 
out annual reviews of incapacity. In Denmark, Ireland and Malta, the administrative au-
thorities  monitoring  implementation  are  the  same  as  the  ones  adopting  the  initial 
measures.  

The judiciary is also involved in the implementation of the protective measures in a num-
ber of countries. It may be the same Court as the one who took the protective measure 
(Austria, Belgium, Cyprus, Czech Republic, France, Greece, Italy, Luxembourg, the Neth-
erlands, Poland, Portugal, Slovakia, and Spain) or another (higher) jurisdiction (Bulgaria). 
In France and Luxembourg, the prosecutor is also involved in the monitoring and review 
of protective measures.  

Authorities dealing with cross-border situations 

In  general,  when  the  national  authorities  have  jurisdiction,  the  courts  or  administrative 
authorities competent for domestic matters will also be competent in cross-border cases. 
More  specifically  for  applications  for  recognition  and  declarations  of  enforceability,  how-
ever, specific authorities are designated in a few Member States. In Lithuania, the Lithua-
nian Court of Appeal (Lietuvos apeliacinis teismas) is competent for such matters. In Po-
land, cases for the recognition and enforcement of decisions on incapacitation, pursuant to 

28 In Malta, courts are not involved in decisions on matters relating to guardianship, as the Guardianship Board 

is the competent (administrative) body. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

Article 11481 of the Code of Civil Proceedings, shall be heard by the district court which 
would have jurisdiction upon a decision by a foreign court, or by the district court of the 
district where territorial jurisdiction is established, or in the absence of such grounds - the 
District Court in Warsaw. 

In  those  Member  States  party  to  the  Hague  Convention,  a  Central  Authority  has  been 
designated in accordance with Article 28 of the Convention ‘to discharge the duties which 
are imposed by the Convention’.  

2.1.3  The concept of vulnerable adult  

The definition of the concept of ‘vulnerable adult’ in the Member States provides a basic 
understanding of the (personal) scope of the domestic, as well as the cross-border, pro-
tective measures. Table 8 below provides a summary of the way this concept is reflected 
in the legal orders of the Member States.  

Table 8: Concept of vulnerable adult in the Member States  

MS  Concept of vulnerable adult 

AT 

§ 21 ABGB (Civil Code) sets out that minors and persons who cannot take  care of all or 
some of their own affairs for a reason other than being a minor are "under the special 
protection of the law". There is no concept of vulnerable adult as such, but the concept of 
decision-making  capacity,  set  out  in  §  24  ABGB,  i.e.  the  ability  to  understand  the 
meaning  and  consequences  of  one's  own  actions  in the  respective  context,  to  determine 
one's will accordingly and to act accordingly.  

The assessment of decision-making capacity must include whether a person's capacities can 
be "mobilised" by appropriate support measures.  

BE 

Pursuant to Article 488/1 of the Civil Code, the figure of protected adult under Belgian law 
corresponds to adults who, because of their state of health, are wholly or partly incapable 
of  protecting  their  personal  and  asset  interests  without  assistance  or  other  support.  A 
person  can  also  receive  the  status  of  a  protected  person  if  he  or  she  is  in  a  state  of 
prodigality29. 

In the context of the judicial protective measures, the notion of incapacity, as defined in 
Articles  491  and  492  of  the  Civil  Code,  is  also  important.  Incapacitated  adults  are 
protected  persons,  who  are  unable  to  perform  autonomously  all  or  certain  actions.  If  a 
person  receives  the  status  of  incapacitated  by  a  decision  by  a  judge,  that  person  is  not 
anymore able to perform the actions for which he or she is listed as incapable by the judge30.  

BG  Article 5 of the Persons and Family Act refers to persons (adults) who are unable to look 

after their own affairs and interests due to mental illness or deficiency.  

The conditions for placement of a person under full or limited incapacity are two and their 
cumulative presence is necessary, namely: 1) medical criterion - there must be a mental 
illness, which affects the intellect, psyche and will of the individual; 2) legal criterion - this 
illness has affected the person's ability to be aware of his actions and expressions of will. 

CY  Cypriot civil law does not provide define the concept of ‘vulnerable adult’. The website of 
the  Social  Welfare  Services  concerning  public  assistance,  old  persons  and  persons  with 
disabilities31 only refers to ‘Special categories of  vulnerable  persons  i.e.  persons  with 
disabilities, single parent families, families with four or more children and families in high 
risk of dissolution are entitled to public assistance even if they are employed full-time’. 

CZ 

The term “vulnerable adult” does not exist in Czech legislation.  

The Civil Code, when dealing with the legal capacity of natural persons, refers in its Section 
38 to one´s own lack of capacity to make juridical acts. Section 45 of the Civil Code refers 
to an adult in need of assistance in decision-making due to complications resulting from 
their  mental  disorder.  Section  49  applies  to  an  adult  who  has  a  mental  disorder  which 

29 Art 488/2 of the Civil Code. 
30 Article 492 of the Civil Code. 
31 http://www.mlsi.gov.cy/mlsi/sws/sws.nsf/dmlassistance_en/dmlassistance_en?OpenDocument.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Concept of vulnerable adult 

prevents him from making juridical acts. These provisions deal with a private mandate 
(“preliminary  declaration”,  assistance  in  decision  making,  and  representation  by  a 
household member respectively). 

DE 

Pursuant to Section 1896(1) of the Civil Code (BGB), if a person of full age, by reason of a 
mental illness or a physical, mental or psychological handicap, cannot in whole or in part 
take care of his affairs, the custodianship court appoints a custodian for him or her.  

DK  According  to  ‘Guidance  on  the  use  of  force  and  other  interventions  in  the  right  of  self-
determination towards adults, including pedagogical principles’)32 the concept of “vulnerable 
people”  in  national  law  is  defined  as  ‘people  with  significant  and  permanent  mental 
disabilities, i.e.. people who, as a result of significant and permanent mental impairment, 
are unable to take care of their own lives and who are often unable to give valid consent’. 

EE 

EL 

ES 

FI 

The  concept  of  vulnerable  adult  in  Estonian  law  consists  of  persons  who  due  to  mental 
illness,  mental  disability  or  other  mental  disorder,  are  permanently  unable  to 
understand or direct their actions, have restricted active legal capacity (§ 8 of the General 
Part of the Civil Code Act). 

The concept of ‘vulnerable adult’ is not expressly defined in the law. However, pursuant to 
Article 1666 of the Civil Code dealing with judicial support, ‘the adult is subject to judicial 
support: 1. When, due to mental or intellectual disorder or due to physical disability, 
they are unable to take care of their affairs in whole or in part, 2. When, due to promiscuity, 
drug addiction or alcoholism, they expose themselves to the risk of deprivation’. 

There is no legal definition of vulnerable adult in  Spanish Civil  Law.  The rules laid out  in 
Article 249 of the amended Civil Code are, however, designed for situations of vulnerability 
in decision making and in the capacity to understand the scope of these decisions. 

The concept of ‘vulnerable adult’ can be found in section 8 of the Guardianship Act, which 
reads: ‘A court may issue a guardian to an adult who, owing to illness, disturbed mental 
faculties,  diminished  health  or  another  comparable  reason,  is  incapable  of  looking 
after his/her interests or taking care of personal or financial affairs in need of management, 
and which will not be appropriately managed otherwise’. 

Another definition may be found with regard to restriction of competency in section 18 of 
the Guardianship Act, stating that ‘(1) If an adult is unable to take care of his/her financial 
affairs  and  his/her  property,  livelihood  or  other  important  interests  are  thereby 
endangered, and the appointment of a guardian is not alone sufficient to safeguard his/her 
interests, a court may restrict his/her competency[…] 

FR  Chapter II of Title XI in Book I of the Civil Code deals with the protective measures applicable 

to vulnerable adults.  

The first article of this Chapter, Article 425 provides that ‘any person who is unable to look 
after his or her own interests by reason of medically certified impairment of either his or 
her mental or physical faculties such as to prevent the expression of his or her will may 
benefit from a legal protective measure provided for in this chapter’.  

HR  A vulnerable adult is a person over the age of 18 who is unable to take care of themselves. 
Pursuant to Article 220 of the Family Act and in the relation to Article 219 Paragraph 2 of 
the  same  Act,  a  vulnerable  adult  is  a  person  placed  under  guardianship  which  provides 
protection  of  their  rights  and  interests  of  which  they  have  been  deprived  by  the  court 
decision on restriction of his/her legal capacity. 

HU  The Civil Code provides for the possibility for the court to limit the capacity of a person to 
act either partially or fully, and the concept of vulnerable adult corresponds accordingly to 
two different types of the limitation of a person’s capacity to act:  

• 

In case of the partial limitation of the capacity to act, the court shall place an adult 
under guardianship if, due to his/her mental disorder, his/her ability required 
to take care of his/her own affairs is significantly reduced in a permanent or 
in a temporarily recurring manner and consequently, having regard to his/her per-
sonal  circumstances,  family  ties  and  social  relations,  his/her  placement  under 
guardianship  is  justified  with  regard  to  specified  categories  of  affairs  (Article 
2:19(2) of the Civil Code).  

32 Vejledning om magtanvendelse og andre indgreb i selvbestemmelsesretten over for voksne, herunder pæda-

gogiske principper Available in Danish at: https://www.retsinformation.dk/eli/retsinfo/2019/10148.  

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MS  Concept of vulnerable adult 

• 

In case of the full  limitation  of the capacity to  act, the court shall place an adult 
under  guardianship  if,  due  to  his/her  mental  disorder,  he/she  permanently 
and completely lacks the ability required to take care of his/her own affairs 
and consequently, having regard to his personal circumstances, family ties and so-
cial relations, his/her placement under guardianship is justified (Article 2:21(2) 
of the Civil Code).  

In  both  instances,  the  concept  of  vulnerable  adult  focuses  on the  mental  disorder  of  the 
person that results in a failure of his/her capacity to act. The Civil Code provides for another 
form of protection. In case of supported decision-making without prejudice to capacity to 
act,  the  guardianship  authority  shall  appoint  a  supporter  for  the  adult  who,  due  to  not 
being  entirely  of  sound  mind,  needs  help  in  administering  some  of  his/her  affairs  or 
making his/her decisions (Article 2:38 of the Civil Code).  

IE 

In  the  Assisted  Decision-Making  (Capacity)  Act  2015,  section  2(1),  ‘“relevant  person” 
means— 

(a) a person whose capacity is in question or may shortly be in question in respect of one 
or more than one matter, (b) a person who lacks capacity in respect of one or more than 
one matter, or (c) a person who falls within paragraphs (a) and (b) at the same time but in 
respect of different matters, 

as the case requires;’ 

Section 3(1) specifies the concept of capacity: ‘a person’s capacity shall be assessed on 
the basis of his or her ability to understand, at the time that a decision is to be made, the 
nature and consequences of the decision to be made by him or her in the context of the 
available choices at that time. 

(2) A person lacks the capacity to make a decision if he or she is unable— 

(a) to understand the information relevant to the decision, 

(b) to retain that information long enough to make a voluntary choice, 

(c) to use or weigh that information as part of the process of making the decision, or 

(d) to communicate his or her decision (whether by talking, writing, using sign language, 
assistive technology, or any other means) or, if the implementation of the decision requires 
the act of a third party, to communicate by any means with that third party. 

[…] 

This definition will apply generally for the purposes of measures to assist decisions, and take 
decisions  on  behalf,  of  vulnerable  adults.  However,  the  legal  regime  is  not  yet  in  place 
because the 2015 Act is not in force at this time.  

Also in the same Assisted Decision-Making (Capacity) Act 2015, for the purpose of Part 11, 
implementing the Convention on the International Protection of Adults agreed at The Hague 
on 13 January 2000, section 109, provides: 

‘In this Part—“adult” means a person who— 

(a)  as  a  result  of  an  impairment  or  insufficiency  of  his  or  her  personal  faculties,  cannot 
protect his or her interests, and (b) has reached 18 years of age.’ 

For  the  Ward  of  Court  procedure,  Order  67  of  the  Superior  Court  Rules  and  Lunacy 
Regulation (Ireland) Act 1871 gives the following definitions: 

“ward” means a person who has been  declared to be of unsound mind and incapable of 
managing his person or property, and includes where the context so admits, a person 
in respect of whom or whose property and order has been made under section 68 or section 
70 of the Act, and a temporary ward; 

“temporary ward” means a person of weak mind and temporarily incapable of managing 
his affairs in respect of whom an order has been made under section 103 of the Act. 

IT 

The  Italian  Civil  Code  lists  the  situations  in  which  a  legal  representative  can  may  be 
appointed to an adult. These are: 

•  A wholly or partial infirmity or a physical or mental impairment which makes 

the person temporarily or permanently unable to take care of their interests; 

•  Mental infirmity; 

• 

Those who, through prodigality of abuse of alcohol or drugs expose themselves or 
their families to serious financial prejudice; 

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MS  Concept of vulnerable adult 

• 

The fact of being deaf or blind since a very young age, insofar as the person con-
cerned did not receive an appropriate education. 

LU 

The  relevant  provisions  of  the  Civil  Code  addressing  the  different  situations  of  persons 
eligible for legal protection in terms of 'capacity'.  

“Protected" adults are identified in Articles 488 and 490 of the Civil Code and refer to persons 
whose autonomy is so limited that they can only imperfectly express or exercise their will 
due to their condition or situation. This therefore includes minors, certain adults who are ill, 
infirm, insane or destitute (including through their own fault). The emphasis is thus placed 
on the alienation of the protected adult's faculties, whether mental or physical.  

A  person  of  full  age  who,  by  his  or  her  prodigality,  intemperance  or  idleness,  exposes 
himself or herself to need  or  compromises the  fulfilment of his or her family obligations, 
may also be protected (Article 488 of the Civil Code).  

Article  490  of  the  Civil  Code  states  that  when  a  person's  mental  faculties  are  altered  by 
illness, infirmity or age-related impairment, he or she may be subject to one of the three 
legally provided protection regimes, depending on his or her protection needs. The same 
protection regimes apply to impairment of bodily faculties, if it prevents the expression of 
will.  

LT 

Various vulnerability grounds are considered without defining what a ‘vulnerable person’ or 
a ‘vulnerable adult’ means33. The grounds for vulnerability of adults could be captured by 
the  national  law  notions  of  ‘physical  or  mental  impairments  or  characteristics’  or 
‘those who cannot be held able to reasonably assess and evaluate their interests 
due to a health condition’, used in the context of access to justice in administrative and 
civil procedures. 

LV 

The concept of “vulnerable adult” set forth in the Civil Code covers:  

(a)  persons  with  health  disorders  of  a  mental  nature,  as  well  as  other  persons,  whose 
capacity to act is restricted by a court,  

(b) persons with health disorders of a mental nature or other disorders, who do not have 
any restriction of their capacity to act. 

MT  The concept of ‘vulnerable adult’ can be deduced from: 

•  Article 188A of the Civil  Code on  persons subject to  guardianship  which states: 
‘…a  major  who  has  a  mental  disorder  or  other  condition,  which  renders him 
incapable of taking care of his own affairs may be subject to guardianship;…the 
parents of a person of age, with disability, with a mental disorder and with 
another condition, which makes such a person incapable of taking care of his or 
her affairs,…’ 

•  Article 189(1) of the Civil Code on person subject to interdiction which states: ‘A 
major who is a person with a mental disorder or other condition, which renders 
him incapable of managing his own affairs, or who is insane or prodigal, …’ 

•  Article 520(1) of the Code of Civil Procedure provides that ‘A demand for the inter-
diction or incapacitation of persons who have a mental disorder or other condi-
tion, which renders them incapable of managing their own affairs, or  who 
are insane or prodigal …’. Article 520(4) of the COCP further explains that ‘(a) 
''other condition'', where used in the context of a condition that renders a person 
incapable of managing his own affairs, means a long-term physical, mental, intel-
lectual or sensory impairment which in interaction with various barriers may hinder 
one’s full and effective participation in society on an equal basis with others; and 
(b)  ''mental disorder'' shall have  the meaning  assigned to it in the Mental Health 
Act’. 

NL 

The Dutch Civil Code provides for the possibility to place an adult who is not able to protect 
his own interests under guardianship. This concept of guardianship is defined as a person 
who ‘loses legal capacity and can therefore no longer independently perform legal acts’34.  

33 For example, see Juodkaitė, D., (2017). Strengthening Procedural Rights in Criminal Law of Persons with 

Mental and / or Psychosocial Disabilities. Analysis of the Situation in Lithuania (Asmenų, turinčių proto ir/ar 
psichosocialinę negalią procedūrinių teisių stiprinimas baudžiamojoje teisėjų. Lietuvos situacijos analizė), 
available at http://www.perspektyvos.org/images/failai/national_baseline_lt_www_edt.pdf.  

34 Informatieblad Ministerie van Justitie en Veiligheid. Curatele en bewind, p. 2. 

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MS  Concept of vulnerable adult 

Less far-reaching measures are fiduciary administration (Title 1.19 of the Dutch Civil Code) 
or  protective  mentorship  (Title  1.20  of  the  Dutch  Civil  Code),  but  the  corresponding 
incapacity is not defined by law.  

PL 

The concept of ‘ vulnerable adult’ depends on the types of protective measures considered.  

• 

• 

• 

The provisions on full legal incapacitation concern a person who is unable to direct 
his or her behaviour. Article 13 of the Civil Code lists examples of abnormalities 
that can cause such a situation: mental illness, mental retardation and other mental 
disorders, in particular alcoholism or drug addiction.  

The provisions on partial legal incapacitation concern a person who, as in the case 
of  full  incapacitation,  has  such  disorders  that  cause  him  or  her  to  need  help  to 
conduct his or her affairs. Partial incapacitation may take place only insofar as 
the person retains to some extent the ability to direct his or her proceedings. 

Furthermore, a curator can be appointed if the person needs help to conduct any 
matters, especially to deal with a particular case.  

PT  Article 138 of the Civil Code provides that adults who are unable for health, disability or 
behavioural reasons, to fully, personally and conscientiously exercise their rights or to 
fulfil their duties, shall benefit from the accompanying measures provided for therein.  

RO  Article  164  paragraph  1  of  the  Civil  Code  stated  that  a  person  who  does  not  have  the 
necessary  discernment  to  attend  to  their  own  interests,  due  to  mental  alienation  or 
mental debility, shall be placed under judicial interdiction.  

According to Article 211 of Law No 71/2011, which is in force, ‘mental debility’ and ‘mental 
alienation’ have the following meaning: a mental illness or a mental handicap which cause 
the person’s mental inability to act critically and predictively with regard to the social and 
legal consequences of the exercise of civil rights and obligations, i.e. putting that person in 
a position which does not allow him/her to look after his/her interests. 

SE 

SI 

The legislation defines under which circumstances a person can get assistance, i.e. a person, 
who,  due  to  an  illness,  a  mental  disorder,  poor  health,  or  similar  circumstances, 
needs  help  to  guard  their  rights,  manage  their  property,  or  provide  for  the  person  (FB 
chap.11 sec.4). 

The system of protective measures for adults in loss of capacity has been changed with the 
new Family Code applicable from 15 April 2019. A person, who due to a mental disorder 
or a mental health problem or other cause affecting the ability to judge is unable to take 
care of his or her rights and interests without harm to himself or herself, shall be placed 
under guardianship and shall be appointed a guardian35. 

SK  Section 10(2) of Act No 40/1964 (the Civil Code) stipulates that if an individual is able to 
do only certain legal acts due to a permanent mental illness or to an immoderate 
consumption of alcoholic beverages, the court shall restrict his or her legal capacity and 
shall specify the extent of such restriction in the decision.  

Article  1  of  the  Hague  Convention  refers  to  ‘adults  who,  by  reason  of  an  impairment  or 
insufficiency  of  their  personal  faculties,  are  not  in  a  position  to  protect  their  interests’. 
Member States have usually not expressly defined the concept of ‘vulnerable adults’ under 
national  law,  but  rather  refer  to  specific  circumstances  which  lead  to  the  recognition  of 
incapacity  and  the  adoption  of  protective  measures.  Accordingly,  the  concept  varies 
depending on the level of protection granted.  

When comparing with the Convention, only Ireland reflected the Convention’s definition in 
the section of the relevant legislation implementing the Convention. In the other Member 
States,  even  though  concepts  differ,  the  criteria  are  in  most  cases  comparable  to  those 
provided by the Convention. 

The impairment or insufficiency of personal faculties is reflected in all Member States, 
but  their  scope  varies  significantly  from  one  Member  State  to  another.  Some  Member 

35 Article 262(1) of the Family Code. 

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States refer to mental  disorder, impairment or illness,  whereas others cover mental but 
also  physical  impairments  (Germany,  France,  Ireland,  Italy,  Luxembourg,  Lithuania, 
Latvia, Malta, Sweden) or more broadly ‘state of health’. Several also refer to prodigality 
(Belgium, Luxembourg, Poland, Slovakia). In the Netherlands, the medical criterion is not 
considered.  

In particular, the inability to protect one’s interests, or to ‘look after their own affairs’, is 
a consideration to define incapacity in nearly all Member States.  Portugal  refers to the 
inability to ‘exercise their rights or fulfil their duties’ and Sweden to ‘guard their rights’, 
which are close to the protection of one’s interest. However, several Member States only 
refer to an ‘incapacity to act’, which is a bit different from the protection of interest: Czech 
law refers to the lack of capacity to make juridical acts, Danish law to the inability to give 
valid  consent,  Estonia  to  ‘restricted  active  legal  capacity’,  Spain  to  the  ‘incapacity  to 
understand’,  and  Slovakia  to  being  ‘unable  to  do  certain  legal  acts’.  Luxembourg  law 
refers  to  the  ‘prevention  of  the  expression  of  will’.  In  Cyprus  and  Latvia,  an  element 
beyond the actual impairment seems to be missing altogether.  

Even though, broadly, the concept of ‘vulnerable adult’ includes common or comparable 
criteria  across  Member  States  similar  to  those  of  the  Convention,  there  are  still 
discrepancies when looking into the details of the Member States’ legal frameworks. This 
can lead to concrete issues, including in cross-border issues, as differences in the concept 
result in differences in the scope of the protection granted from one country to another. 

Key findings: 

•  Domestic law on the protection of vulnerable adults is mostly embodied in general 
civil law instruments (Civil code, Code of Civil Procedure). In a few Member States, 
incapacity is regulated in instruments relating to family law and the law of persons. 
Only  in  a  limited  number  of  Member  States,  is  the  issue  regulated  in  dedicated 
pieces of legislation. 

•  The competent authorities, both for the adoption and the implementation of pro-
tective measures, are in the vast majority of cases, part of the judiciary. Adminis-
trative authorities in charge of adopting protective measures are present only in six 
Member States. These are more present in the monitoring and control of the imple-
mentation of measures, either in the form of dedicated- guardianship- authorities 
or as part of the general, usually local, administration. 

•  The  concept  of  ‘vulnerable  adults’  is  overall  defined  in  the  Member  States’  legal 
frameworks with common characteristics: a medical component (e.g., impairment, 
disability,  illness)  and  a  legal  component  (inability  to  defend  one’s  interests,  ab-
sence  of  capacity  to  act).  These  are  consistent  with  the  Convention’s  definition. 
However, there are significant discrepancies in the way each characteristic is de-
tailed in the Member States, with a direct impact on the scope of legal protection in 
each Member State, which differs depending on the persons covered. 

2.2  Protection of vulnerable adults in the domestic legal framework 

This section provides an insight on the protection of vulnerable adults in the domestic legal 
system, allowing a basic understanding of the national context in light of the further as-
sessment of cross-border situations. A distinction is made between three situations: 

(a)  measures of protection taken by judicial or administrative authorities: where a ju-
dicial or administrative authority appoints someone charged with assisting or rep-
resenting the vulnerable adult (e.g. a guardian, a curator, a deputy); 

(b)  powers of representation (in the form of a private mandate) –granted by the adult 
concerned, at a time when he or she is in a position to protect his or her interests;  

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Study on the cross-border legal protection of vulnerable adults in the EU 

(c)  protection provided by a spouse or other relative by operation of law: where a per-
son, usually the spouse of the adult, is, pursuant to national rules, automatically 
vested with the power to represent the adult in the event that the latter is not in a 
position to protect his/her interest.  

Table  9  below  provides  an  overview  of  the  way  these  three  situations  apply  across  the 
Member States. Each of these situations is described in the sub-sections below.  

Table 9: Overview of means of adoption of protective measures 

T
A

E
B

G
B

Y
C

Z
C

E
D

K
D

E
E

L
E

S
E

I
F

R
F

R
H

U
H

E
I

T
I

T
L

U
L

V
L

T
M

L
N

L
P

T
P

O
R

E
S

I
S

K
S

X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X  X 

X  X 

X  X  X 

X  X  X  X  X  X 

X 

X  (X)
36 

(X)
37 

X  X  X 

X  X 

X  X 

X 

X  X 

Protective 
measures 
taken by 
judicial or 
administr
ative 
authoritie
s 

Private 
mandate 

Protection 
granted 
by 
operation 
of law 

2.2.1  Protective measures taken by judicial or administrative authorities 

2.2.1.1  Nature and scope of protective measures 

Article  3  of  the  Hague  Convention  provides  that  ‘the  measures  referred  to  in  Article  1 
[measures  directed  to  the  protection  to  the  protection  of  the  person  or  property  of  the 
adult] may deal in particular with - 

(a)  the determination of incapacity and the institution of a protective regime; 
(b)  the placing of the adult under the protection of a judicial or administrative authority; 
(c)  guardianship, curatorship and analogous institutions; 
(d)  the designation and functions of any person or body having charge of the adult's 

person or property, representing or assisting the adult; 

(e)  the placement of the adult in an establishment or other place where protection can 

be provided; 

(f)  the administration, conservation or disposal of the adult's property; 
(g)  the authorisation of a specific intervention for the protection of the person or prop-

erty of the adult. 

As underlined in the Explanatory Report of the Hague Convention38, protective measures 
vary  across  the  different  Member  States.  Therefore,  some  of  the  measures  enumerated 
under sub-paragraphs (a) to (g) of Article 3 of the Hague Convention may be unknown in 
certain  legal  systems  or  there  may  be  overlaps  between  the  different  categories  of 

36 In the form of a mandate under general law- see Section 2.2.2.1. 
37 As above.  
38 Lagarde P., Protection of adults Convention, Explanatory Report, 2017, p.46-47. https://as-

sets.hcch.net/docs/1509ab33-c2fe-4532-981c-7aa4dad9ba45.pdf  

53 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

measures.  

Determination  of  incapacity  is  linked  to  the  measures  of  protection  that  can  be 
pronounced, such as guardianship, curatorship, and analogous institutions, as well as other 
protective regimes provided under Article 3 of the Hague Convention (sub-paragraph (a)). 
However, the determination of incapacity and the request for a protective measure may 
be subject to separate proceedings. For instance, in Bulgaria, there is a clear distinction 
between,  on  the  one  hand,  the  declaration  of  incapacity  of  the  adult  by  the  court  (the 
procedure is judicial) and, on the other hand, the appointment of a representative as part 
of a protective measure (the procedure is administrative). Nevertheless, in most Member 
States, the declaration of incapacity goes together with a protective measure and both are 
part of the same proceedings. In Latvia, the determination of the incapacity of a person 
is  made  by  the  judgment  of  a  court  on  the  adoption  of  a  trusteeship  or  a  guardianship 
measure. In the Netherlands, incapacity is determined as part of the proceeding creating 
a guardianship and in Malta, as part of the application for a measure of protection such 
as guardianship or a measure of interdiction or incapacitation.  

In Sweden, Slovenia and Spain, a person cannot be declared incapacitated. In Sweden, 
since  1  January  1989,  it  is  not  possible  to  declare  a  person  as  legally  incompetent.  If 
someone, due to an illness, a mental disorder, poor health, or similar circumstances, needs 
help to guard their rights, manage their property, or provide for their person, the court can 
decide to appoint an administrator or a conservator for that person but no incapacitation 
is provided. In Slovenia, national law originally provided for a system of determination of 
(full  or  partial)  incapacity  and  subsequent  decision  on  placement  under  guardianship. 
However, this system was changed with the introduction of the new Family Code in 2019. 
One of the main reasons was that deprivation of legal capacity is an unjustified intrusion 
of private life. The situation is the same in Spain where there is no incapacity status.  

In  such  situations  where  the  protection  of  the  adult  does  not  necessarily  involve  a 
declaration of his or her incapacity, he or she may remain in control of his or her affairs 
but be placed under the protection of a an authority (sub-paragraph (b) of Article 3 of the 
Hague  Convention).  In  some  Member  States,  the  adults  can  be  placed  under  the 
protection  of  a  judicial  or  administrative  authority.  For  instance,  in  France  and 
Luxembourg, the measure of safeguard of justice (sauvegarde de justice) is a temporary 
measure applicable in the event that a vulnerable adult needs to be protected for certain 
acts but continues to manage them. The adult retains the exercise of his or her rights (with 
some exceptions) but his or her placement under an authority makes it possible, where 
necessary, to annul or bring about the annulment of certain past acts of the adult39.  

Apart  from  the  above  measures,  the  adult  may  be  subject  to  protective  measures  or 
regimes  established  based  on  his  or  her  situation.  Guardianship,  curatorship,  and 
analogous institutions are the most common measures provided in the different Member 
States. The adult can also be placed in an establishment or other place where protection 
can be provided, when  so required.  The administration, conservation,  or disposal  of the 
adult's property can also be planned. Finally, the protection of the adult can be limited to 
a specific intervention for the protection of the person or property of the adult. 

The  table  below  provides  an  overview  of  the  measures  available  to  the  court  and 
administrative authorities in the Member States, with a focus on the measures provided in 
sub-paragraphs (c), and (e) to (g). Sub-paragraph (d) is not covered in the table as the 
question for the designation and functions of a person or body having charge of the adult’s 
person or property, representing the adult is linked to other sub-paragraphs of Article 3 of 
the Hague Convention.

39 On this point, see ibid., p.47, para. 21. 

54 

 
Table 10: Overview of protective measures available to competent authorities 

Study on the cross-border legal protection of vulnerable adults in the EU 

MS 

c) Guardianship, curatorship and analogous 
institutions 

Guardiansh
ip 

Curatorship 

Analogous 

institutions 

Judicial 
representation 

adult 

✓ 

e) Placement of the adult 
in an establishment or 
other place where 
protection can be provided 

f) Administration, 
conservation or disposal of 
the adult's property 

g) Authorisation of a 
specific intervention for 
the protection of the 
person or property of the 
adult  

forced 
Collocation 
admission  to  a  psychiatric 
institution 

or 

By 
representative 

the 

By the curator 

judicial 

adult 

N/A 

✓ 

✓ 

✓ 

Trusteeship 

Request/decision 
accommodation 

for 

By the guardian/trustee 

Compulsory Hospitalisation 

N/A 

Optional Hospitalisation  

Agreement on the provision of 
social services 

N/A 

Custodianship 

-  Accommodation  without 
deprivation of liberty 

- 
Accommodation 
deprivation of liberty 

with 

Involuntary  admission,  stay 
and treatment in a psychiatric 
ward 

In the context of custodianship  N/A 

Specific  measure  applicable  to 
real estate (purchase and sale of 
real estate for the person under 
as 
guardianship, 
mortgaging  requires  approval 
from the Agency of Family Law) 

as  well 

Placement of person in closed 
institution 

N/A 

Involuntary hospitalisation 

By the judicial assistant  

N/A 

✓ 

- Judicial defender 

Internment  

By the vulnerable adult.  

- 
support 

Administrative 

Support 
(voluntary, 
judicial) 

measures 
lege  or 

ex 

55 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

✓ 

EE 

✓ 

✓ 

EL 

ES 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS 

c) Guardianship, curatorship and analogous 
institutions 

Guardiansh
ip 

Curatorship 

Analogous 

institutions 

e) Placement of the adult 
in an establishment or 
other place where 
protection can be provided 

f) Administration, 
conservation or disposal of 
the adult's property 

FI 

FR 

✓ 

✓ 

✓ 

of 

HR  Appointme
nt 
guardian/s
pecial 
guardian 

a 

N/A 

Admission  to  a  psychiatric 
establishment  at  the  request 
of  a  third  party  or  in  case  of 
imminent danger 

Involuntary  detention  and 
involuntary  placement  in  a 
psychiatric institution 

By the guardian  

By the guardian  

By the guardian (but the scope 
is defined by the court)  

g) Authorisation of a 
specific intervention for 
the protection of the 
person or property of the 
adult  

N/A 

Family empowerment  

-  Securing  the  property  of 
the  vulnerable  adult  before 
making a decision on custody 

- Decisions on the vulnerable 
adult’s personal situation 

✓ 

of 

Appointme
nt 
receivers 
and 
guardians 

HU 

IE 

IT 

LT  Guardianshi
p/curatorsh
ip  (type  I 
and 
II)/ 
assistantshi
p 

N/A 

By the guardian  

N/A 

Involuntary  admission  to  an 
approved  centre  on  the  basis 
of a mental disorder 

N/A 

Power of attorney 

- Incapacitation 

Compulsory health treatment 

- Interdiction  

- 
administration 

Support 

✓ 

Assistantship 

N/A 

(type  I  and 
II) 

In the context of the protective 
incapacitation, 
measures  of 
interdiction 
support 
administration  

and 

N/A 

By the guardian, the curator or 
by 
property 
separate 
a 
administrator  

Temporary 
(interim) measures 

protection 

LU 

✓ 

✓ 

Hospitalisation 
consent  of  a  mentally 
person 

without 
ill 

By the guardian, the  curator or 
the other spouse 

Representation 
spouses 

between 

LV 

Trusteeship 

Placement 

By the trustee 

N/A 

56 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS 

c) Guardianship, curatorship and analogous 
institutions 

Guardiansh
ip 

Curatorship 

Analogous 

institutions 

e) Placement of the adult 
in an establishment or 
other place where 
protection can be provided 

f) Administration, 
conservation or disposal of 
the adult's property 

g) Authorisation of a 
specific intervention for 
the protection of the 
person or property of the 
adult  

MT 

✓ 

- Interdiction 

Placement 

By the guardian  

N/A 

NL 

PL 

✓ 

✓ 

PT 

RO 

SE 

- Incapacitation 

- Fiduciary 
administration 

- Protective 
mentorship 

on 

Decision 
the 
accompaniment  and 
accompanying 
measures 

Incapacity 

By  the  guardian  and  by  the 
fiduciary administrator 

N/A 

Placement  in  a  social  welfare 
home 

Internment 

By the guardian of the curator   N/A 

By  the  accompanying  person 
designated by the Court. 

N/A 

✓ 

Judicial interdiction 

N/A 

is 

By  the  guardian  when  the 
person 
judicial 
the  curator 
interdiction,  by 
when 
is  under 
curatorship 

the  person 

under 

N/A 

Appointment  of  an 
administrator/conser
vator 

Compulsory psychiatric care 

By  the  administrator,  by  the 
conservator  

SI 

✓ 

- involuntary treatment 

By the guardian  

N/A 

Guardianshi
p  of  adults 
and 
guardianshi
p for special 
cases 

SK 

✓ 

- involuntary placement 

Proceedings 
the 
permissibility of admission and 
inpatient 
in  an 
detention 

on 

N/A 

for  acts 
Court  approval 
the 
concerning 
administration 
the 
represented  person’s  assets 

of 

57 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

MS 

c) Guardianship, curatorship and analogous 
institutions 

Guardiansh
ip 

Curatorship 

Analogous 

institutions 

e) Placement of the adult 
in an establishment or 
other place where 
protection can be provided 

f) Administration, 
conservation or disposal of 
the adult's property 

facility  without 
consent 

informed 

g) Authorisation of a 
specific intervention for 
the protection of the 
person or property of the 
adult  

which  fall  outside  of  the 
scope of everyday acts 

58 

Study on the cross-border legal protection of vulnerable adults in the EU 

•  Guardianship,  curatorship  and  analogous  institutions  (sub-paragraph  (c) 

of Article 3) 

One of the means often used in the different Member States to protect a vulnerable adult 
is  the  appointment  of  a  representative.  This  representative  is  responsible  for  making 
decisions on the vulnerable adult’s behalf during the time in which he or she will not be in 
a position to effectively protect his or her interests.  

The measures providing for the appointment of such representatives are usually referred 
to  as  guardianship  in  most  of  the  Member  States40.  With  regard  to  measures  of 
guardianship  as  provided  in  several  Member  States,  there  are,  however,  national 
differences. For instance, the scope of the measure (e.g., the degree of the measure, the 
determination of the powers entrusted to the representative) may be different, as well as 
the  related  procedural  rules  (e.g.,  the  competent  authority,  the  introduction  of  the 
proceedings).  

The  measure  of  guardianship  usually  entails  that  the  adult  concerned  becomes  legally 
incapacitated  as  is  the  case  in  the  majority  of  the  Member  States  providing  for  such 
protective measure41. This incapacity can be either general or only limited to certain types 
of acts expressly covered by guardianship. The extent of the incapacity of the vulnerable 
adult  is  generally  defined  by  the  decision  on  the  adoption  of  the  measure  taken  by  the 
competent authority.  

A  measure  of  guardianship  can  be  taken  to  cover  all  personal  and  financial  matters  but 
may  also  be  limited  to  just  one  of  the  parts,  or  certain  personal  or  financial  matters. 
Depending on the Member States, the decision on guardianship can  cover all or specific 
assets. Some acts may be accomplished by the vulnerable adult, and some may require 
the consent of the guardian. In general, the vulnerable adult may act in common matters 
of daily life.  

Apart  from  guardianship,  some  Member  States  provide  for  measures  of  curatorship42 
(instead of guardianship or together with guardianship as is the case in France, Lithuania, 
Luxembourg, and Poland providing both) and others provide for analogous institutions43 
(e.g., trusteeship, assistantship). Again, these  measures are different  in terms of  scope 
and procedural rules.  

•  The placement of the adult in an establishment or other place where pro-

tection can be provided (sub-paragraph (e) of Article 3) 

The majority of Member States’ legal systems also provide for the possibility of placing 
the  vulnerable  adult  in  an  establishment  or  other  place  where  they  can  be 
provided  with  protection.  These  measures  are  often  referred  to  as  compulsory 
hospitalisation or admission to a psychiatric establishment; but the vulnerable adult may 
also be placed in other institutions such as, a nursing home, a social welfare home or any 
other specialised institution adapted to the situation of the vulnerable adult. Such measures 
usually  apply  in  cases  where  the  patient  suffers  from  a  serious  mental  disorder.  A 
distinction is then often to be made with measures applicable to diminished mental capacity 
due  to  ageing  or  failure  to  adapt  to  society  that  are  often  not  sufficient  grounds  for 
admission and placement in an establishment. 

Measures of hospitalisation of the adult concerned are provided, in Cyprus, Greece, and 
Slovakia.  Cyprus,  provides  for  both  hospitalisation  with  and  without  consent  of  the 

40 BG, CY, CZ, DK, EE, EL, FI, FR, HR, HU, IE, LT, LU, MT, PL, SI, and SK. 
41BG, CY, CZ, EE, EL, FI, FR, HR, LT, LU, NL, PL, SI and SK. 
42 FR, LU, LT, PL and RO.  
43 BG, DE, ES, IT, LT, LV, MT, PT, RO, and SE. 

59 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

vulnerable  adult.  For  instance,  in  Cyprus,  a  measure  of  optional  hospitalisation  can  be 
taken by the psychiatrist at the patient’s request. In cases where the patient suffers from 
a serious mental disorder, for which appropriate treatment can only be provided in a safe 
psychiatric  centre,  the  court  can  decide  on  the  adoption  of  a  measure  of  compulsory 
hospitalisation, i.e., without the consent of the adult concerned. For instance, the Belgian, 
Danish,  French,  and  Swedish  systems  provide  for  specific  measures  aiming  at  the 
admission of the adult concerned to a psychiatric establishment.  

•  The administration, conservation or disposal of the adult's property (sub-

paragraph (f) of Article 3) 

With regard to the administration, conservation, disposal of the vulnerable adult’s 
property, in the vast majority of Member States, this is carried out by the representative 
appointed as part of a measure of guardianship, curatorship or analogous institutions (e.g., 
trusteeship, custodianship, incapacitation, interdiction). In various Member States, certain 
transactions cannot be  entered without the authorisation of the competent authority. In 
Denmark,  for  example,  national  law  provides  for  a  specific  measure  applicable  to  real 
estate. The purchase and sale of real estate for the adult under guardianship, as well as 
mortgaging, requires approval from the Agency of Family Law, the competent authority to 
impose and implement protective measures.  

•  The authorisation of a specific intervention for the protection of the person 

or property of the adult (sub-paragraph (g) of Article 3) 

Some Member States provide for measures consisting of a specific intervention for the 
protection of the person of the vulnerable adult or their property.  

For  instance,  in  Greece,  a  temporary  judicial  assistant  can  be  appointed  by  the  Court. 
Their powers include any precautionary measures to avoid a serious risk to the person or 
the property of the person concerned. In practice the temporary judicial assistant carries 
out  the  duties  of  the  judicial  assistant  until  the  final  decision  on  the  judicial  assistant’s 
appointment has been made.  

In France, family empowerment consists of assistance or representation of the protected 
person. It may be general or limited to certain acts determined by the judge and covers 
the person's assets and/or the person. 

In  Croatia,  national  law  provides  for  specific  measures  to  secure  the  property  of  the 
vulnerable adult before making a decision on custody and the possibility to take decisions 
on the vulnerable adult’s personal situation. 

2.2.1.2  Procedural rules 

Introduction of proceedings 

The proceedings for judicial protection can be initiated by different persons or institutions. 
Table  11  below  provides  a  snapshot  of  the  persons/institutions  that  can  introduce  a 
proceeding  for  the  protection  of  a  vulnerable  adult  in  the  27  Member  States.  It  covers 
proceedings regarding protective measures taken by judicial or administrative authorities 
as provided for in Member States.  

Table 11: Overview of persons-institutions that can introduce proceedings 

T
A

E
B

G
B

Y
C

Z
C

E
D

K
D

E
E

L
E

S
E

I
F

R
F

R
H

U
H

E
I

T
I

T
L

U
L

V
L

T
M

L
N

L
P

T
P

O
R

E
S

I
S

K
S

X  X 

X  

X   X   X   X   X   X   X   X  

X  

X   X  

X  X  X  X   X   X   X  

Protected 
person 

60 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

T
A

E
B

G
B

Y
C

Z
C

E
D

K
D

E
E

L
E

S
E

I
F

R
F

R
H

U
H

E
I

T
I

T
L

U
L

V
L

T
M

L
N

L
P

T
P

O
R

E
S

I
S

K
S

X 

X   X  

X   X  

X  

X  

X  

X   X  

X   X  X   X  

X  

X 

X  

X   X 

X   X  

X  

X  

X   X   X   X  

X  X   X  

X  

X   X  

X   X   X   X   X   X  

X  

X   X   X   X   X   X  X    

X   X  

X 

X   X  

X   X   X   X   X   X   X   X  

X   X   X   X   X   X  X   X  X   X   X   X  

X  

X  

X  

X  

X   X 

X   X   X  

X  X  

X  

X   X  

X   X 

X  X  

X  

X 

X  

X  

X  

X   X  

Ex officio 
by the 
court  
Any 
interested 
party  
Public 
prosecuto
r  
Spouse 
(or 
partner)  
Other 
close 
relatives  
Represent
ative  
Public 
institution
s 
Doctor or 
social/he
alth 
institution
s 

In  almost  all  Member  States44,  the  vulnerable  adults  themselves  can  initiate  the  pro-
ceedings for the creation of a protective regime.  

In all Member States, the family is one of the main actors in the protection of the vulnerable 
adult. As a result, the spouses or partners are often considered as persons that can initiate 
the  proceedings.  Apart  from  the  spouses  and  partners,  ascendants,  and  descendants, 
brothers and sisters may also initiate proceedings in nearly all (21) Member States.  

With regard to the public sphere, the public prosecutor is also an important actor in the 
protection of a vulnerable adult. As a result, in several Member States45 the procedure for 
the  provision  of  a  protective  measures  may  be  initiated  by  the  public  prosecutor.  In 
France, the public prosecutor can do it on their own initiative or at the request of a third 
person.  

Lastly, some Member States46 have a very broad approach to the persons who may initiate 
the proceedings  and  rather provide  for  such a possibility to “any interested party”. This 
then may cover family, friends, social and healthcare institutions or authorities, as long as 
these persons or institutions have an interest.  

With regard to the persons that can be appointed as a representative by a court or 
administrative decision, some Member States provide for a general rule, i.e., any capable 
person  can  be  appointed  as  a  representative.  In  contrast,  some  Member  States  rather 
provide for a restrictive list, i.e., only specific persons, such as family members or specific 
professionals can be appointed as a representative.  

44 AT, BE, CY, DE, DK, EE, EL, ES, FI, FR, HR, IT, LU, LV, PL, PT, RO, SE, SI and SK.  
45 BE, BG, EL, ES, FR HU, IT, LT, LU and LV. 
46 BE, BG, CY, CZ, FI, HR and IE.  

61 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

Few Member States47 provide for the appointment of any capable person as a representa-
tive. For instance, in Slovakia, any capable person can be appointed as a guardian, but 
priority is given to the family. Otherwise, the court shall appoint as representative an au-
thority of local administration.  

National provisions in Croatia, Luxembourg, Latvia and Slovenia provides for a list of 
persons  who  cannot  be  appointed  as  representatives.  This  can  include,  for  instance,  a 
person whose interests conflict with the interests of the vulnerable adult. 

In most cases, national provisions provide for a hierarchy with regard to the persons that 
can  be  appointed  as  a  representative.  For  instance,  in  France,  priority  is  given  to  the 
family by the judge. Firstly, the appointment of the spouse or partner is considered, and 
failing that, another family member (ascendant, descendant, brother, or sister), or an ally. 
Lastly, any person living with the adult or with close or stable ties with him or her, also 
known as a "close relative", may be appointed as representative. 

Also,  in  some  Member  States,  the  representative  shall  be  the  person  mentioned  in  the 
power of representation or the private mandate if established by the vulnerable adult where 
national law requires a declaration of incapacity.  

Hearing of the adult concerned  

Article 13  of the UNCRPD on access to justice  provides that “States Parties  shall ensure 
effective  access  to  justice  for  persons  with  disabilities  on  an  equal  basis  with  others, 
including  through  the  provision  of  procedural  and  age-appropriate  accommodations,  in 
order  to  facilitate  their  effective  role  as  direct  and  indirect  participants,  including  as 
witnesses, in all legal proceedings, including at investigative and other preliminary stages.”  

When  making  a  decision  on  protective  measures  for  a  vulnerable  adult,  in  all  Member 
States, the judicial/ administrative authority considers the hearing of the vulnerable person 
concerned. 

This  requirement  is  sometimes  mandatory  (for  all  measures  or  only  for  some)  and  is 
sometimes only a possibility. For instance, in Belgium, the hearing of the vulnerable adult 
is mandatory for the request of a measure of compulsory admission to a psychiatric ward; 
however, in the context of a measure of judicial protection, hearing occurs only if the adult 
requests it (or his or her person of trust if incapacitated). In the latter case, information of 
the adult about his/her right to be heard is not required by law, but is ensured in practice 
by the lawyer or person of trust.  

In Member States providing for the hearing of the vulnerable adult when deciding on the 
application of a protective measure, it is also provided that the person concerned does not 
have to testify if he or she is not able to do so48, if it would be detrimental to his or her 
health49, if he or she is not able to express his or her will50. 

Some Member States also provide for the hearing of the relatives of the vulnerable adult 
(Bulgaria,  Estonia),  or  in  the  presence  of  a  medical  specialist  as  in  Poland  or 
Luxembourg.  

Lastly,  in  Luxembourg,  Portugal,  Romania  and  Slovenia,  the  law  also  explicitly 
provides for the possibility for the adult to be heard at his or her place of residence. 

47 CZ, DE, LU, LT, and SK. 
48 As it is the case in CY, HR, DK, ES and FI. 
49 As in is the case in SK, FR, CZ, ES, FI and LU. 
50 As it is the case in FR.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

Representation by a lawyer and legal aid 

Mandatory representation by a lawyer in procedures that relate to vulnerable adults is only 
provided in ten Member States51.  

In the Czech Republic, mandatory representation by a lawyer is only provided for 
some  cases.  In Slovenia, national  law  provides  for  a  mandatory  representation  by  a 
lawyer but only in cases of special security measures, such as compulsory detention and 
treatment in certain (medical) institutions.  

In Luxembourg, although representation by a lawyer is not mandatory in the procedures 
that regard vulnerable adults, it is mandatory in case of an appeal of the judgment opening 
the protective regime.  

In Sweden,  if  needed,  the  vulnerable  adult  may  be  assisted  by  a  person  in  the  court 
proceedings, but this person does not need to be a lawyer. 

All Member States provide for the right to legal aid for persons that are unable to afford 
legal representation in the procedures that relate to vulnerable adults.  As indicated in the 
results of a comparison of Member States’ national schemes on legal aid on the European 
e-justice  Portal,  there  are  fundamental  differences  in  the  legal  aid  systems.  In  some 
Member States, the main purpose is to make legal services and access to justice generally 
available.  In  others,  legal  aid  is  limited  to  the  very  poorest.  The  nature,  scope  and 
conditions vary from one Member State to another52.  

Opposability of the decision  

The conditions and requirements for the opposability of a decision of protective measure 
vary between the Member States.  

The question of the opposability of a decision creating a protective measure regards the 
civil law concept of opposability towards third persons. Namely, the question is whether a 
legal action (contract, court-decision) agreed between parties or imposed on parties would 
also have legal effect for third persons, who were not a party to the contract or the court 
proceedings.  Regarding  vulnerable  adults,  they  may  have  legal  interactions  with  third 
persons  when  protected  under  a  specific  measure,  i.e.,  as  they  are  fully  or  partially 
incapacitated, and these persons need to be aware of the measure.  

Opposability may, for instance, require publication and/or the registration of the decision 
creating a protective measure to become opposable towards third persons. The following 
Member  States  do  not  require  the  publication  of  registration  of  the  decision  to  become 
opposable  toward  third  parties: Finland,  Hungary,  the  Netherlands,  Sweden, 
and Slovenia. The other Member States provide for the publication and/or the registration 
of  the  decision  on  protective  measures.  This  allows  persons  that  were  not  part  of  the 
proceedings to become aware of the measure protecting a person.  

A certain period of time is also sometimes required for the decision to be opposable. For 
instance,  in  Luxembourg,  for  the  guardianship  regime,  national  law  provides  that 
‘judgments  opening,  modifying  or  terminating  guardianship  may  not  be  invoked  against 
third parties until two  months after they have been  entered in a file in the name of the 
protected  person’53.  However,  even  in  the  absence  of  this  entry,  they  may  be  invoked 
against third parties who have personal knowledge of them. Also, in France, judgments 
on family  empowerment, curatorship, and guardianship only become opposable towards 
third  parties  two  months  after  the  mention  of  the  measure  in  the  Civil  Registry  (more 

51 HR, CZ, DK, EL, HR, HU, IT, LT, PL, PT and RO. 
52 European e-Justice Portal - Legal aid (europa.eu) 
53 Art. 493-2 of the Civil Code. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

specifically, in the birth certificate of the protected person).  

Conditions for review  

In all Member States, it is possible to modify protective measures in the course of their 
application.  The  competent  authority  to  decide  on  any  modifications  of  the  protective 
measure is usually the same as the one that was competent for creating such a measure 
(i.e., the competent court or administrative authority).  

In the different Member States, the most common modifications that can be made are the 
following:  

•  appointment of a new representative; 
•  extension or limitation of the scope of the appointed representative;  
•  extension of the term of office of the representative;  
•  modification of the categories of affairs covered by the limitation in case of partial 

limitation to act; 

•  extension or limitation of the vulnerable adult’s legal capacity; and 
• 

restoration of the vulnerable adult’s legal capacity.  

Some Member States provide for an automatic periodic review of the measures of protec-
tion of vulnerable adults. 

• 

• 

• 

In Spain, national law provides that support measures adopted judicially shall be 
reviewed periodically within a maximum period of three years.  
In Croatia, it is provided that every three years, the Welfare Centre (the competent 
authority for creating protective measures) is obliged to review the need for guard-
ianship protection of the vulnerable adults and to compile a report on that.  
In Hungary, national provisions order for a statutory review of the placement of a 
vulnerable  adult  under  guardianship.  In  the  judgment  ordering,  maintaining  or 
modifying the limitation of capacity to act, the court shall specify the date of launch-
ing the statutory review of the placement under guardianship.  

•  Finally,  in  Malta,  for  matters  relating  to  guardianship,  where  the  competent  au-
thority makes an order for appointing a guardian, it shall also order that a hearing 
for a review of the order shall be held within a specified period (but not longer than 
two years). 

On  the  contrary,  some  Member  States  do  not  provide  for  an  automatic  review  of  the 
measures:  

•  The Bulgarian legislation does not provide for any possibility of automatic periodic 
review  of  whether  the  grounds  for  placing  a  person  under  guardianship  remain 
valid.  

•  The  same  applies  in  Denmark  where  there  are  no  requirements  for  continuous 
reassessments of guardianship cases to ensure that it is still required to maintain 
one specific guardianship.  

•  Lastly,  in  Ireland,  there  is  no  systematic  requirement  for  periodic  review  of  the 

measure and circumstances.  

Modifications  may  be  requested  by  the  person  protected,  his  or  her  representative,  the 
public prosecutor, or any interested party. Modifications may also be initiated by the com-
petent authorities themselves, such as the competent court. For instance, in Greece, re-
garding judicial support, the court may modify the type and extent of the measure of its 
own motion. The same applies in Finland where the competent authority shall on its own 
initiative review the guardianship during the next three months of its issuance and in Malta 
where the review of the measure shall be made by the Guardianship Board (the competent 
authority) of its own motion.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

In Belgium, a modification of the measure may require taking the opinion of relatives of 
the protected person and in France, with regard to curatorship and guardianship, the judge 
needs to obtain the opinion of the person in charge of the protective measure. 

Rules  regarding  whether  registration  and/or  publication  is  required  for  opposability  are 
generally the same as for the opposability of the decision creating the measure.  

End of a protection measure 

Apart from the death of the protected person, Member States’ national legislations provide 
for several grounds for the termination of protective measures. This includes, for instance: 
the  death  of  the  representative  of  the  protected  person;  when  specific  duration  of  the 
measure was set and it has expired; when the conditions for the protective measure are 
no  longer  met  (e.g.,  the  protected  adult  recovered  his  or  her  capacities);  when  the 
evolution of the adult justified it (e.g., his or her mental health has improved), or by the 
placement under another measure.  

The table below highlights the main grounds provided by national legislation regarding the 
termination  of  protective  measures  applicable  to  vulnerable  adults.  This  table  does  not 
provide  an  exhaustive  overview  but  rather  focuses  on  the  most  commons  grounds  for 
ending a protective measure in the 27 Member States.  

Table 12: Main legal grounds for the termination of a protective measure 

T
A

E
B

G
B

Y
C

Z
C

E
D

K
D

E
E

L
E

S
E

I
F

R
F

R
H

U
H

E
I

T
I

T
L

U
L

V
L

T
M

L
N

L
P

T
P

O
R

E
S

I
S

K
S

X 

With the 
death of the 
representati
ve  

When the 
set duration 
of the 
protective 
measures 
has expired 

When the 
conditions 
are no 
longer met 
(including 
recovery of 
faculties) 

When the 
evolution of 
the 
conditions of 
the adult 
justifies it 

By the 
placement 
under 
another 
measure 

Grounds are 
not specified 
by law 

X 

X 

X 

X    

X 

X   X  X  X  X 

X  X  X  X  

X  X 

X   X   X   X    

X   X  

X    

X 

X 

X    

X 

X 

X    

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Study on the cross-border legal protection of vulnerable adults in the EU 

Apart  from  these  grounds,  specific  grounds  are  sometimes  provided,  depending  on  the 
type of measure for which termination is requested.  

In all Member States, the authority that decided on the creation of the protective measure 
is the  one competent to decide on its termination (e.g., the competent court, a  specific 
agency or authority).  

Usually, as is the  case  in  Greece, France, Hungary, Italy, Malta, Poland, Portugal, 
Romania, and Slovenia, the termination of the measure is requested by specific persons 
(e.g., the spouse, other relatives).  

Possibility of appeal 

In all Member States, appeals are open against the decisions of judicial or administrative 
authority creating a protective regime or deciding on the entry into force of a protective 
measure.  In  many  Member  States54,  national  rules  governing  appeals  are  provided  by 
general provisions regarding appeals in civil proceedings. In other Member States55, 
the  law  provides  for  specific  rules  applicable  to  appeals  brought  against  decisions 
regarding the protection of vulnerable adults. These specific provisions usually deal with 
the  authority  competent  for  the  appeal,  the  time  limit  for  lodging  an  appeal  ,  and  the 
person who can appeal.  

In  some  Member  States56  -  where  the  decision  on  protective  measure  was  issued  by  a 
court - the request for an appeal must be filed with the first instance court. For instance, 
in Austria, appeals are filed with the court of the first instance (but the decision on the 
merit  is  rendered  by  the  court  of  the  second  instance).  The  same  applies  to  Slovakia 
where appeals shall be lodged in the court which issued the decision (i.e., the district court 
which issued the judgment in first instance).  

In  the  other  Member  States,  the  authority  competent  for  receiving  appeals  against 
decisions on the creation or the entry into force of a protective measure is a higher court 
than the court that issued the decision creating a protective measure or regarding its entry 
into force. This is usually the “court of appeal” or another, higher, court as it is the case in 
Slovenia where appeals against the decision of the  local court (okrajno sodišče) having 
placed the person under guardianship are decided by the higher courts (višje sodišče) with 
territorial jurisdiction. 

Furthermore,  the  rules  regarding  the  appeal  against  decisions  creating  a  protective 
measure or the entry into force of a measure also depend on the type of measure. For 
instance, in Bulgaria, there are specific rules regarding the decisions by the mayor, as the 
guardianship  and  trusteeship  body  and  any  refusal  by  the  mayor  to  appoint  a 
guardian/trustee or to take other steps provided for in the national Family Code may be 
challenged by interested parties or the public prosecutor before the district court, which 
gives  a  final  decision  on  the  merits.  In  France,  decisions  regarding  guardianship  or 
curatorship can be challenged before the Court of Appeal but no appeal is open against a 
decision  ordering  a  safeguard  of  justice,  except  in  respect  of  the  appointment  of  the 
representative.  

In some Member States, the appeal is open only to specific persons. For instance, in 
Luxembourg,  only  a  limited  number  of  persons  can  challenge  the  decision  to  open  a 
guardianship or the decision to refuse to release it. The protected person’s spouse, his/her 
ascendants,  and  descendants,  his/her  siblings,  the  curator,  the  prosecution,  the  other 
family  members,  allies,  and  friends,  even  if  they  were  not  party  to  the  procedure,  can 

54 AT, BE, BG, CY, DE, HU, IE, IT, LU, LT, LV, MT, PL, PT, RO, SE, SI, and SK.  
55 DK, EE, EL, ES, FI, FR, and HR.  
56 AT, BE, and SK. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

appeal the opening judgment (Article 493) and judgments refusing to end the protective 
regime  (Article  507  of  the  Civil  Code).  In  France,  it  depends  on  the  decision  that  is 
challenged.  Appeals  against  the  decision  refusing  to  order  a  protective  measure  of  the 
vulnerable adult are only open to the applicant while appeals against the decision to open 
a protective measure may also be brought by other people who have been informed of the 
decision  (e.g.,  spouse,  parents,  relatives,  friends)  (Article  1239  CC).  In  Greece  and 
Denmark,  national  rules  provide  that  the  appeal  is  limited  to  the  persons  who  were 
involved in the proceedings.  

With regard to the appeal against decisions deciding or approving the modification to or 
termination  of  a  protective  measure,  it  appears  that  in  almost  all  Member  States57,  the 
same rules regarding the appeal (as described above) apply to these decisions.  

Key findings: 

•  Member States provide for a wide range of protective measures taken by judicial 

and administrative authorities.  

•  Although some important trends are common between national measures of pro-
tection  of  vulnerable  adults,  there  are  quite  some  differences.  Indeed,  even  be-
tween Member States that provide for the same type of measures, e.g., guardian-
ship, there are differences with regard to the introduction of the proceedings (e.g., 
the person that can initiate the proceedings, the competent authorities for taking 
the measure, the persons that can be appointed as a representative), the hearing 
of the adult (in some Member States, it is mandatory, in some it is not), the oppos-
ability of the decisions (not all Member States provide for registration/publication 
requirements, some provide for a specific timing, some do not), the conditions for 
review (although there are common grounds, conditions for review are quite differ-
ent, e.g., the timing for reviewing the measure, the person that can request a re-
view), the end of the protective measure (there are different grounds and proceed-
ings); and finally the possibility of appeal (e.g., competent authorities, person that 
can appeal the decision).  
In  most  of  the  Member  States,  courts  are  the  competent  authorities  for  creating 
such protective measures. Only a limited number of Member States have a specific 
administrative authority in charge of adopting measures of protection for vulnerable 
adults.  

• 

2.2.2  Private mandate 

2.2.2.1  Nature and scope of private mandate 

The protection of vulnerable adults often involves the conferral of particular powers on a 
natural person, or an institution, charged with representing and/or assisting the adult con-
cerned as regards certain decisions. Under the law of some States, the above powers may 
be granted by the adult concerned, at a time when they are in a position to protect their 

57 The exceptions are: 

•  Greece, which provides for specific rules regarding privative or subsidiary judicial support. All the persons that 
took  part  in  the procedure,  according  to  the  legislation,  have  the  right  to  appeal  against  the  decision  that 
modifies the type and extent of the judicial support. However, in the cases when the procedure can be initiated 
only after the request of the person concerned and this request has been rejected, only the person concerned 
has the right to appeal. The judicial support also has the right to appeal, in his or her name or in the name of 
the person concerned, against the decisions concerning the scope of his or her competence. Regarding vol-
untary hospitalisation, a judgment can be appealed according to the provisions of the Code of Civil Proceed-
ings. Note that the appeal may also be brought by the scientific director of the Mental Health Unit where the 
patient is being treated. 

•  Luxembourg, where the national rules on protected regimes for adults do not address the issue of decisions 
modifying the protective measure. However, national rules dealing with guardianship of minors but applicable 
to persons of full age, set up the general principle that “in all matters, persons to whom the decision of the 
guardianship judge must be notified may, within a period of forty days, appeal to the Court of Appeal, Civil 
Division”. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

interests. In this report, the terms ‘powers of representation’ or ‘private mandate’ 
are used to refer to such powers that may be granted by an adult, under a contract, or a 
unilateral act, to be exercised when the grantor is not in a position to act in their interests.  

Private mandates need to be distinguished from  advanced directives. An advanced di-
rective or ‘living will’, is an instruction given by a person, when they still have full capacity, 
providing guidelines in case the person will become unable to devise or express his or her 
preferences. Such directives may  relate to  healthcare and end-of-life decisions58. It 
may be that an adult grants a private mandate and also issues advanced directives. Only 
private mandates are covered in the following analysis59.  

Nature of private mandates  

National  law  provides  for  the  possibility  for  vulnerable  adults  to  set  up  their  future 
protection via private mandates in 16 Member States: Austria, Belgium, Croatia, Czech 
Republic,  Denmark,  Finland,  France,  Germany,  Hungary,  Ireland,  Lithuania, 
Malta, Portugal, Romania, Spain, and Sweden, as presented in Table 13 below.  

Table 13: Overview of private mandates provided in national law 

MS  Comments 

AT 

In  the  ABGB  (Civil  Code),  §§  260-263  set  out  the  possibility  for  a  precautionary  power 
(“Vorsorgevollmacht”).  

§ 264 sets out that insofar as a person of full age cannot take care of his/her own affairs 
due to mental illness or a comparable impairment of his/her decision-making capacity, and 
does not have a representative for this purpose and can no longer establish a precautionary 
power  of  representation,  but  is  still  capable  of  understanding  the  basic  meaning  and 
consequences of a power of attorney, of determining his/her will accordingly and of acting 
accordingly,  he/she  may  select  one  or  more  persons  close  to  him/her  as  adult 
representatives to take care of these affairs. 

BE 

The Civil Code provides in Article 490 and following the possibility of a private mandate or 
“care mandate”. This is a specific form of the power of attorney (Lastgeving - mandate) as 
governed by the rules of Articles 1984 to 2010 of the Civil Code 60.  

In addition to the private mandate stricto sensu, Article 496 of the Civil Code provides the 
possibility to make a unilateral declaration of preference for the future case in which one 
will become incapacitated. This allows designating a person to be appointed as curator, and 
to stipulate the principles that the curator must observe in the performance of their duties.  

CZ  Section 38 of the Civil Code enables a person who anticipates a future lack of legal capacity 
to  make  a  preliminary  declaration  by  which  they  express  their  will  regarding  the 
management of their interests or designating a guardian.  

DE  According to Section 1896(2), sentence 2 of the German Civil Code (BGB), the appointment 
of a custodian is unnecessary despite the existence of the medical requirements if the affairs 
of  the  person  concerned  can  be  handled  just  as  well  by  a  private  mandate.  The  private 
mandate in the context of vulnerable persons is a mandate as every other mandate under 
the German Civil Code regulated in Sections 662 ssq. BGB. 

58 Please note that in the Netherlands, the private mandate is called “living will” (‘levenstestament’). Despite 

the terminology, the “living will” is not a last will, nor is it an advanced directive. Rather, the “living will” is a 
contractual construction or future decision concerning assets and other financial, personal or healthcare in-
terests. It therefore, corresponds more with the concept of private mandate than with the concept of ad-
vanced directives. 

59 This limitation in scope was chosen to enhance the level of comparability across Member States. There are 
different understandings of the concept of ‘powers of representation’ and what it should entail. Whilst this 
report does not cover advanced directives, these are considered covered under Article 15 of the Convention 
by the 2017 Explanatory Report, paragraph 96 which provides that ‘The powers thus conferred may be very 
varied. They have to do with the management of the adult's property as well as his or her personal care. 
One often finds in them the instruction given to the person mandated to refuse any persistent course of 
treatment in the event of incurable illness’.  

60 Article 490/, § 2 of the Civil Code. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Comments 

DK  Private mandates are provided for in Law 618 of 8 June 2016 - Lov om fremtidsfuldmagter 
(Law  on  future  mandate)  and  Order  1018  of  23  August  2017  -  Bekendtgørelse  om 
fremtidsfuldmagter (Executive Order on future mandate). A future mandate gives a person 
over the age of 18 the opportunity to appoint one or more representatives to take care of 
their financial and personal affairs if the person at some point is unable to do so on their 
own, due to illness, impaired mental function or the like. 

ES 

Preventive  measures  are  provided  for  in  Articles  250  and  254  -262  Civil  Code.  They  are 
established for the present or a future situation in anticipation of future disability. 

Among these preventive measures the most important are the preventive powers (poder o 
mandato  preventive)  (Articles  256-  262  Civil  Code).  These  preventive  powers  can  be 
included in an ordinary power of attorney with a clause stating that the power of attorney 
shall  continue,  when  in  the  future  the  grantor  needs  support  for  the  exercise  of  their 
capacity.  

The adult may also grant a specific power of attorney, for the specific case they would need 
support in the exercise of their capacity in the future. The power of attorney can include 
provisions  for  determining  if  the  need  for  support  has  arisen  at  which  point  it  shall  take 
effect. 

FI 

The  Act  on  the  Continuing  Power  of  Attorney  provides  the  possibility  for  a  person  (the 
grantor) to issue a private mandate to another person. This may only be done before the 
grantor has become incompetent due to illness or other reasons. 

FR  Articles 477 to 495 of the Civil Code and Articles 1258 to 1260 of the Code of Civil Procedure 
as amended by Decree No. 2019-966 of 18 September 2019 provide for a private mandate, 
the mandat de protection future.  

HR  Any  person  who  has  not  been  deprived  of  legal  capacity  may  appear  before  a  notary  to 
propose the trusted person they wish to be appointed by the welfare centre as their guardian 
or special guardian in case of their future loss of capacity (Article 241 of the Family Act). 

HU  Articles 2:39-41 of the Civil Code foresee the possibility to make arrangements concerning 

the future limitation of the capacity to act. 

IE 

LT 

An adult with the requisite capacity can plan for possible future loss of capacity by executing 
an enduring power of attorney under the Powers of Attorney Act 1996. 

Pursuant to Article 2.1371.1 of the Civil Code, any person with sufficient capacity to act may 
appear before a notary to propose for the future the person whom they wish to be appointed 
by the judge as their legal representative  when they  are in a situation of incapacity and 
guardianship, and to establish the measures or criteria to be taken into account with regard 
to their person or property. 

MT  Title XVIII ‘Of Mandate’, Sub-title I on ‘Of the nature and form of mandate’, Article 1864A 
of  the  Civil  Code provides  the  possibility  for  a  person  of  full  age to  give  a  mandate to  a 
representative in anticipation of one’s incapacity. 

PT  Article 156 of the Civil Code sets out the rules for private mandates for the management of 
the  interests  of  an  adult  person.  Such  mandates  are  subject  to  the  general  rules  for 
mandates and must specify the rights involved and the scope of any representation, as well 
as any other elements or conditions of exercise, being freely revocable by the grantor.  

RO  According to Article 166 of the Civil Code, any person who has full capacity may designate, 
by  unilateral  act  or  mandate  contract,  concluded  in  authentic  form,  the  person  to  be 
appointed guardian to take care of them and their property in the event they are placed 
under judicial interdiction. Article 180 paragraph 2 refers under the same conditions to the 
designation of a curator. 

SE 

In Sweden, a person can draw up a future power of attorney (framtidsfullmakt), which may 
cover financial and personal aspects. 

This table lists the Member States in which private mandates are provided for by law in 
case of incapacity, even though, in a few cases (Germany, Malta, Portugal), the rules are 
assimilated to the rules on private mandates in general. Also in the Netherlands, the Civil 
Code  provides  as  lex  generalis,  the  possibility  to  establish  powers  of  representation  by 
private mandate; but Dutch law does not recognise a specific lasting power of attorney for 

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Study on the cross-border legal protection of vulnerable adults in the EU 

the  so-called 

the  notaries  have  developed 

specific situations involving loss of legal capacity and vulnerable adults. However, for future 
decisions concerning assets and other financial, personal or healthcare interests in Dutch 
legal  practice, 
‘living  will’  (het 
levenstestament).  Despite  the  terminology,  the  “living  will”  is  not  a  last  will,  nor  an 
advanced  directive.  Rather,  the  “living  will”  is  a  contractual  construction  based  on  the 
mandate of the Civil Code. The corresponding characteristics are presented in this section 
as well. Under  Polish law as well, the  only legal solution that  can be used as a private 
mandate is a general “power of attorney”, which is not designed specifically to protect the 
interests  of  vulnerable  adults,  but  can  be  used  to  that  end.  However,  there  are  no 
regulations stating that this type of lasting power of attorney would become effective only 
after the principal loses actual decision-making powers, and that, if granted, the procedure 
for  appointing  a  legal  assistant  would  be  implemented,  though  there  seems  to  be  no 
obstacle to include the suspensive clause in the power of attorney, stipulating that it can 
be performed only after the loss of legal capacity by the principal. The Polish system is also 
reflected in this section.  

Bulgaria,  Cyprus,  Estonia,  Greece,  Italy61,  Latvia62,  Luxembourg,  Slovakia  and 
Slovenia63 do not have private mandates. 

Scope of private mandates 

The scope of the private mandate varies across Member States. In certain cases, the types 
of  decision(s)  regarding  the  assets  and/or  regarding  the  personal  aspects  that  can  be 
covered are defined limitedly, and certain acts or categories of acts are excluded, such as 
disposal  of  specified  categories  of  assets,  gifts,  personal  and  family  matters,  medical-
related decisions.  

In Austria64, Hungary and Portugal, the content of the mandate is not defined by law, 
but is to be freely determined in the mandate. The scope is also very broad in Belgium, 
Denmark,  Germany,  Spain,  Finland,  France,  Malta,  and  the  Netherlands,  where 
nearly  all  acts  regarding  assets  and  personal  aspects  can  be  part  of  the  mandate.  In 
Ireland, the vulnerable adult may decide freely which specific competences will be granted 
to the representative, within the material scope provided by the law. In Romania as well, 
the content of the mandate for a curator or a tutor may only correspond to their role as 
defined by law, i.e., the adult concerned may not eliminate by their unilateral act or by a 
mandate contract any of the powers granted to the tutor by law, and a private mandate 
granted to a curator may only cover property and (material) interests. 

In the Czech Republic, the content of the preliminary declaration is defined limitedly. It 
may encompass how assets are to be managed (such as selling or rental, placement of the 
vulnerable  adult  in  a  specific  social  services  institution  or  a  wish  not  to  be  placed  in  a 
specific institution), that certain matters are managed by a specific person other than a 

61 However, it should be noted that in their answer to the survey conducted within the framework on this study, 
national authorities indicated having a private mandate. The mandate they presented however corresponds 
to advanced directives. As previously explained, advanced directives are not assimilated to private man-
dates in the context of this study. 

62 However, it should be noted that in their answer to the survey conducted within the framework on this study, 
national authorities indicated that a private mandate was provided for by Latvian law. In the follow-up inter-
view, it was clarified that reference was made to private mandate as lex generalis, and not to the future 
power of representation.  

63 However, it should be noted that in their answer to the survey within the framework on this study, the na-

tional authorities indicated that private mandates are provided for by national law and the national authori-
ties quoted relevant provisions of the Patient’s Rights Act in this regard. Slovenian law does not regulate the 
possibilities of anticipating a future loss of capacity. That means that it is not possible to suggest a trusted 
person to be appointed as a guardian in case of future incapacity. Based on the information available (e.g. 
http://www.the-vulnerable.eu/Questions.aspx?c=si ), the national expert therefore concluded that private 
mandates do not exist, and that the Patient’s Rights Act provides for advanced decisions in case of medical 
treatment.  

64 For the precautionary power. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

guardian, appointment of an asset manager, etc. and a wish that a certain person becomes 
his guardian. In Lithuania, besides wishes regarding the future place of residence (care 
institution), the mandate may mainly cover the identification of a guardian or curator (or 
who may not be designated as such) and of the person who would resolve issues in the 
implementation  of  acts  related  to  their  property  or  person.  Also  in  France,  the  future 
protection  mandate  can  be  the  basis  for  the  grantor’s  designation  of  his  or  her  trusted 
person, who may be different from the proxy. The designation of the future guardian is the 
sole purpose of the power of attorney in Croatia, of § 264 in Austria, and of the declaration 
of  preference  in  Belgium,  where  the  individual  may  only  designate  a  potential 
guardian/special  guardian  but  cannot  specify  the  measures  or  criteria  to  be  taken  into 
account with regard to their own person or their property.  

In a few countries, a specific and explicit mandate in the contract is required for the proxy 
to  perform  specific  legal  actions  (e.g.,  concluding  or  amending  marriage  contracts  or 
cohabitation  contracts  and  making  donations  in  Belgium,  medical  treatment,  custodial 
accommodation,  legal  representation  in  Germany,  legal  representation  in  Austria).  In 
Denmark  and  Finland,  the  holder  may  not  donate  or  give  gifts  unless  this  has  been 
specified in the power of attorney.  

In  Belgium,  Denmark,  Finland,  the  Netherlands  and  Germany,  highly  personal 
decisions  cannot  be  covered  by  the  private  mandate  (e.g.  marriage  related  acts, 
testaments, decisions regarding the status of the parent, decisions in the medical sphere, 
right to vote).  

In Denmark and Finland, the holder of the power of attorney may not represent the adult 
concerned in legal transactions where he or she would be biased.  

In  France,  the  content  of  the  mandate  depends  on  its  form.  Where  the  mandate  is 
established under private signature, the management of the assets of the protected person 
shall be limited to administrative acts, excluding acts of disposal; whereas the mandate in 
the form of a notarial deed may allow the representative to make specific acts of disposal 
of the assets of the protected person. In Poland also, different types of mandates (general, 
generic  or  specific)  correspond  to  a  more  or  less  broad  scope  of  measures  that  can  be 
adopted by the proxy.  

Persons designated by the mandate 

The  persons  that  may  be  designated  as  proxy  are  more  or  less  loosely  in  national  law. 
Table 14 below provides an indication of the manner in which the regulatory frameworks 
of the Member States determine who can act as a proxy.  

Table 14: Persons designated as proxy 

MS  Type of 

mandate 

AT 

Precautionary 
power  

§ 264 

BE 

Private mandate 
/ Declaration of 
preference 

Persons designated 

No specific requirements/restrictions in the law 

• 

• 

close relatives 

other close persons 

Exclusion of:  

• 

• 

• 

persons who themselves are subject of a judicial or extrajudicial 
protection measure 

legal persons with the exception of private foundations which 
exclusively serve the protected person or which have been es-
tablished for the administration of protected person 

the board members or staff members of the institution where 
the protected person resides 

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Type of 

mandate 

Persons designated 

CZ 

Preliminary 
declaration  

• 

persons who have been completely deprived of parental author-
ity65.  

Exclusion of: 

• 

• 

• 

persons who do not have legal capacity to act  

persons  whose  interests  are  contrary  to  the  interests  of  the 
agent 

an operator of a facility where the ward stays or a person de-
pendent on such facility 

DE 

Private mandate 

No specific requirements/restrictions in the law66 

DK  Private mandate 

Any person who is capable, i.e.: 

• 

• 

aged not less than 18  

not under guardianship or under a future mandate as a grantor 
himself/herself which is in force. 

ES 

Preventive 
measures  

No specific requirements/restrictions in the law 

FI 

Private mandate   Any natural person who is capable (legal persons are excluded) 

FR  Mandate of future 
protection  

The representative may be: 

• 

• 

a  natural  person  (family member,  relative,  professional,  etc.) 
or,  

one of the legal persons included in the list of legal agents for 
the protection of adults (this list can be consulted at the “pre-
fecture” or at the court). 

Exclusion of: 

• 

• 

adults who benefit from a legal protective measure  

persons who have been prohibited from exercising pursuant to 
the Criminal Code 

•  members of the medical and pharmacy professions, as well as 
medical  auxiliaries,  as  representatives of  their  patients  under 
curatorship or guardianship. 

HR  Anticipated order   Any individual who meets the requirements prescribed for a guardian 

in the Family Act, and have full legal capacity. 

Exclusion of persons who: 

• 

• 

• 

• 

• 

have been deprived of custody rights; 

have been deprived of legal capacity, 

have a conflict of interest with the adult; 

given their behaviour and characteristics and their relationship 
with the adult, cannot be expected to properly perform the du-
ties of a guardian; 

have  previously  entered  into  a  lifetime  caregiver  agreement 
with the adult.  

No specific requirements in the law, but the court, in its decision on 
placing the person under guardianship and limiting his/her capacity to 
act, shall neglect the statement if: 

a) complying with the statement is explicitly contrary to the interests 
of the adult, or 

b) there are grounds specified in law for the exclusion of the person 
proposed. 

HU  Prior statement  

65 Article 490/1 j° 496/6 of the Civil Code. 
66 The empowerment of certain persons, however, may require the appointment of an additional custodian. This 
is the case, for example, when the spouses have given each other power of attorney and have become too 
old in the meantime to represent each other 

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Type of 

mandate 

IE 

Enduring power 
of attorney  

Persons designated 

Any person who is 18 or older and who is: 

• 

• 

• 

• 

not bankrupt,  

not disqualified under company law,  

not convicted of a relevant offence, and  

not the owner or employee in a nursing home where the donor 
resides (unless they happen to be a close relative of the donor). 

LT 

Private mandate 

No specific requirements/restrictions in the law 

MT  Mandate 

No specific requirements/restrictions in the law 

NL 

Living will 

No specific requirements/restrictions in the law 

PL  General power of 

The representative must have at least limited legal capacity. 

attorney 

PT 

Private mandate 

No specific requirements/restrictions in the law 

RO  Mandate 

Any capable person 

(guardian or 
curator)  

SE 

Future power of 
attorney  

No specific requirements/restrictions in the law 

In  Austria  (for  the  precautionary  power),  Germany,  Spain,  Lithuania,  Malta,  the 
Netherlands, Portugal and Sweden, there are no conditions set by law as to who can be 
designated  as  proxy.  The  conditions  are  very  limited,  requiring  only  legal  capacity  in 
Denmark and Romania. A number of exclusions are listed in Belgium, the Czech Republic, 
France,  Croatia  and  Ireland.  Such  exclusions  include  situations  resulting  in  a  lack  of 
capacity and conflicts of interest.  

2.2.2.2  Procedural rules 

Establishment of the mandate 

The mandate is established following various formal requirements depending on the Mem-
ber States. Entry into force then occurs also upon fulfilment of conditions that differ from 
a Member State to another. Table 15 below provides a summary of the conditions to set 
up the mandate in the 27 Member States.  

Table 15: Formal requirements and entry into force of private mandates 

MS  Type of 

Formal requirements 

Entry into force 

mandate 

AT  Precautionary 

power  

§ 
mandate 

264 

• 

• 

• 

• 

• 

unilateral act 

in writing, before a notary, law-
yer  or  adult  protection  associa-
tion 

contract  

in person and in writing before a 
notary,  lawyer  or  adult  protec-
tion association 

the  representative  shall  be  per-
sonally  instructed  on  the  nature 
and consequences of the private 
mandate. 

• 

• 

registration  in  the  Aus-
trian Central Register of 
Representatives 
(ÖZVV)  

registration  in  the  Aus-
trian Central Register of 
Representatives 
(ÖZVV)  

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Type of 

Formal requirements 

Entry into force 

mandate 

BE  Private 

mandate 

Declaration of 
preference  

CZ  Preliminary 
declaration  

DE  Private 

mandate 

DK  Private 

mandate 

ES  power 

of 

attorney 
(poder 
preventivo) 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

contract 

in  writing,  an  authentic  deed  is 
not  required,  except  if  it  applies 
to immovable assets 

registration  in  the  registry  kept 
by  the  Royal  Federation  of  the 
Belgian Notaries 

unilateral  act  (but  with  agree-
ment of the representative) 

in writing before a notary or the 
registrar  to  the  judge  of  the 
peace 

registration  in  the  registry  of 
the  Royal  Federation  of  Belgian 
notaries. 

unilateral act 

public  document  drafted  by  the 
notary,  or  private  document, 
made  in  a  written  form,  dated 
and confirmed by two witnesses. 

contract 

no formal requirements, except if 
it  covers  highly  sensitive  issues, 
in which case it must be made in 
writing,  and  for  certain  real  es-
tate transactions, requiring a no-
tarial deed.  

unilateral act 

in writing, before a notary (who 
must make a declaration),  

included  in  the  ‘Future  Mandate 
Register’ 

either by contract or by unilateral 
act 

•  must be made in a notarial deed 

FI  Private 

mandate  

• 

unilateral act (handed over to the 
representative) 

•  private  document,  made  in  a 
written  form,  dated  and  con-
firmed by two witnesses 

FR  Mandate 

of 

future 
protection  

• 

• 

contract 

protected  person  shall  choose 
whether  the  mandate  takes  the 
form of a notarial deed as an au-
thentic deed or a private deed 

• 

according  to  the  condi-
tions set up in the con-
tract  

•  with  the  imposition  of 
judicial 
protection 
measures by the judge, 
upon  agreement  of  the 
designated proxy and of 
the judge 

• 

• 

• 

• 

• 

• 

• 

declaratory,  but  taken 
into  consideration  upon 
decision  on  incapacity 
issued by Court.  

according  to  the  condi-
tions set up in the con-
tract 

by  submitting  a  re-
quest to the Agency of 
Family  Law,  together 
with  a  medical  certifi-
cate and the payment of 
a fee.  

according  to  the  condi-
tions  set  up 
in  the 
power of attorney  

if necessary, with a no-
tarial deed including the 
notary’s  assessment  of 
the situation and an ex-
pert report. 

upon  confirmation  by 
the competent authority 
after  submission  of  a 
medical  statement  or 
other reliable document 

upon  presentation  by 
the proxy of the private 
mandate  and  medical 
certificate  to  the  court 
clerk’s  office  for  en-
dorsement  by 
the 
clerk. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Type of 

Formal requirements 

Entry into force 

mandate 

HR  Anticipated 
order  

HU  Act  concerning 
the 
future 
limitation of the 
capacity to act 

• 

• 

• 

unilateral act 

notarial deed 

unilateral act 

•  public deed before a notary, pri-
vate  deed  countersigned  by  an 
attorney-at-law,  or  presenta-
tion before the guardianship au-
thority 

• 

• 

• 

• 

binding  upon  the  Wel-
fare  Centre  when  ap-
pointing the guardian.  

binding  upon  the  Court 
when  deciding  on 
placement under guard-
ianship 

due account to be taken 
by the guardianship au-
thority  when  appoint-
ing the guardian  

registration 
to  Court 
upon  application  of  the 
proxy and test for inca-
pacity  

IE  Enduring 

power 
attorney  

of 

LT  Private 

mandate 

• 

• 

• 

• 

contract 

in  writing,  signed  by  the  princi-
pal, their representative, and two 
witnesses 

registration  in  registry of  endur-
ing power of attorneys 

unilateral  act  (but  with  agree-
ment of the representative) 

• 

upon  Court  decision 
on incapacity  

•  notarial  deed  as  an  authentic 

form 

• 

registration  in  notarial  registry 
and Registry of Legally Incapable 
Persons and Persons with Limited 
Legal Capacity 

MT  Mandate 

• 

unilateral act 

NL  Living will 

PL  General 

power 
attorney 

of 

PT  Private 

mandate 

RO  Mandate 

(guardian  or 
curator)  

SE  Future power 

of attorney  

•  notarial  deed (with 2  witnesses 

and medical declaration) 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

• 

registration in the Public Registry 
of Malta 

unilateral act 

no legal requirement but in prac-
tice, notarial deed 

unilateral act 

in writing, notarial deed depend-
ing on the content 

contract 

form depending on the rights in-
volved  and  the  scope  of  repre-
sentation 

either by contract or by unilateral 
act 

authentic deed before the notary 

registration in the mandate reg-
istry of the public notaries  

unilateral act 

in writing, signed by the principal 
and two witnesses  

75 

•  approval 

from 

the 
Court  of  Voluntary  Ju-
risdiction  upon  applica-
tion  of  the  proxy  when 
incapacity occur 

• 

• 

• 

• 

• 

• 

according  to  the  condi-
tions set up in the act 

declaration of will by the 
principal 

accompaniment 
de-
clared  by  Court  taking 
into  account  the  con-
ditions of the mandate 

confirmed 
the 
Court when deciding on 
the protective measure 

by 

the principal is not enti-
tled to set conditions for 
entry  into  force  in  the 
mandate 

by 

determined 
the 
proxy  unless  the  man-
date provides that entry 
into  force  shall  be  de-
termined by a court 

• 

the  proxy  holder  can 
also apply to a court to 

Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Type of 

Formal requirements 

Entry into force 

mandate 

determine  whether  the 
mandate  shall  enter 
into force. In such case, 
the Court must obtain a 
medical  certificate  or 
equivalent  document, 
unless  clearly  unneces-
sary. 

In the majority of cases (12), the mandate is a unilateral act; it is a contract for six of 
the mechanisms presented, and may be one or the other in two cases (power of attorney 
in Spain and mandate in Romania).  

There is no clear trend in relation to the form of the mandate. It has to be notarised in 
ten of the mechanisms presented67, and can only be a private instrument in three cases 
(mandate in Finland, enduring power  of attorney in Ireland, future power of attorney in 
Sweden). It can be either a private or an authentic instrument, depending on the choice 
of the protected person in the Czech, French and Hungarian systems. In Hungary, the act 
can also be presented before the guardianship authority. Finally, in several Member States, 
the form of the mandate will depend on its content. In Poland, Portugal, Germany and 
Belgium if a specific form is required for the validity of a legal action (e.g. notarial deed 
required for actions regarding immovable assets), the power of attorney to perform this 
action should be granted in the same form. 

In terms of entry into force of the mandate, different situations can be observed:  

• 

In several Member States, the conditions of entry into force are set up directly in 
the mandate  (Belgium,  Germany,  Spain,  the  Netherlands,  and  Sweden  in  some 
cases). This occurs mainly when the mandate is a contract. In Poland, entry into 
force  occurs  with  a  declaration  of  will  of  the  principal.  In  Romania  on  the  other 
hand, it is expressly excluded that the mandate includes the conditions of its entry 
into force.  

•  Registration to the authorities determines entry into force in Austria. In Spain, if 

necessary, a notarial deed may be needed.  

•  Confirmation  by  the  judge  or  authority  when  adopting  the  protective  measure. 
The mandate must be formally endorsed or confirmed by the Court in a few cases: 
for the declaration of preference in Belgium, and for the private mandate in Finland 
and  Romania.  In  Sweden,  where  the  mandate  is  a  unilateral  act,  the  proxy  may 
also seek the approval of the Court. Similarly, the proxy has to trigger the entry 
into force in Demark, France, Ireland, and Malta, by sending a request (and medical 
certificate) to the competent authority. In addition, in a number of Member States, 
the judge will follow the conditions of the mandate when taking a decision (Croatia, 
Hungary, Lithuania). The mandate is not binding upon the Court in the Czech Re-
public, in Portugal, or for the appointment of the guardian in Croatia.  

Opposability of the mandate 

Registration,  which  is  done  by  the  notary,  the  judicial  authorities,  or  other  competent 
authority, is required for opposability to third parties in Austria, Belgium (private mandate), 

67 Precautionary power and Art. 264 mandate in Austria, declaration of preference in Belgium, private mandate 

in Denmark, power of attorney in Spain, anticipated order in Croatia, private mandate in Lithuania, mandate 
in Malta, living will in the Netherlands mandate in Romania.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

Croatia,  Denmark,  Spain,  France68,  Hungary  and  Lithuania.  In  Finland,  the  mandate  is 
registered  in  the  registry  of  guardianship  affairs,  but  since  it  does  not  in  itself  limit  the 
competence of the adult concerned, it does not require being opposable to third parties. 
Similarly, as it is assimilated to a contract, the living will is not opposable to third parties 
in the Netherlands, and registration, which is possible, does not affect opposability.  

Publication is not required for opposability in any of the Member States. In fact, access 
to the information is often restricted to specific persons.  

In Ireland, the enduring power of attorney needs to be  notified to the listed number of 
the donor’s relatives, and up to three other persons may be specified in the enduring power 
of attorney. In Portugal, the mandate becomes opposable when the accompaniment meas-
ure is declared by the Court. The same logic applies for Romania, whereby, though reg-
istration  of  the  mandate  is  required,  opposability  occurs  once  the  protective  measure  is 
adopted by the Court.  

Conditions of modifications of the mandate 

In Germany, the vulnerable person, as long as he or she has legal capacity, can modify 
the mandate at any time without any formal requirements. It is the same in Spain, where 
the person who set up the power of attorney may subsequently amend the power of attor-
ney, with or without formal or informal support, and in the Netherlands, where the living 
will, as a private act, can be modified at will by the parties. Also in Poland, modification 
of the power of attorney is the unilateral act, based on the principal’s declaration of will, 
which does not require specific formalities. 

In  Belgium,  the  proxy  or  principal  who  wishes  to  modify  the  mandate  shall  notify  the 
judge or the notary who drafted the mandate; an authentic form will be required under the 
same conditions as the establishment of the mandate. The modifications need to be regis-
tered the same way the mandate was adopted. Along the same lines, in  Denmark and 
Sweden, the person who established the mandate may modify (or revoke) it following the 
same procedure as for establishment.  

In  the  Czech  Republic,  it  is  for  the  Court  to  amend  (or  cancel)  the  declaration  if  the 
circumstances change in such a substantial way that, under the new circumstances, the 
declarant  would  not  have  made  the  declaration  or  would  have  made  a  declaration  with 
different contents, and is under threat of serious harm. Similarly, in Hungary, the Court 
may decide not to apply the mandate if the  circumstances have changed in such a  way 
that the implementation of the provisions of the mandate would be contrary to the interests 
of  the  individual  under  custodianship.  It  is  also  for  the  Court  to  modify  the  mandate  in 
Malta. In  Croatia, the Welfare Centre may appoint a new guardian  if the guardian ap-
pointed by mandate needs to be replaced (dismissal or death of the guardian).  

In France and Lithuania, the situation varies depending on whether or not the mandate 
has entered into force. Before the private mandate enters into force, it can be modified by 
the principal in the same form as its establishment. When the private mandate has already 
entered into force, its modification requires the intervention of a judge in France, and the 
mandate cannot be modified anymore in Lithuania.  

Conditions to end the mandate 

The circumstances under which the mandate may end are summarised in Table 16 
below.  

68 Note that this decree has not yet been published as the special registry has not been created. This infor-

mation has been confirmed by the national authorities. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

Table 16:Conditions to end the mandate 

T
A

X 

E
B

X 

Z
C

X 

E
D

K
D

X 

S
E

X 

I
F

X 

R
F

X 

R
H

U
H

X 

X 

E
I

X 

T
L

X 

T
M

L
N

L
P

T
P

X 

X 

X69  X 

O
R

X 

E
S

X 

X 

X 

X 

X 

X 

X 

X 

X  

X 

X 

X  

X 

X 

X 

X 

X 

X  

X 

X 

X  

X  

X  

X  

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X  

X 

X 

With the 
death of the 
protected 
person/its 
representative  

When the 
designated 
person is not 
in a position 
to act as 
proxy 
anymore 

When the 
conditions are 
no longer met 
(including 
recovery of 
faculties) 

In case of 
substantial 
change in the 
situation  

When the 
proxy does 
not act in the 
interest of the 
protected 
person 

By the 
placement 
under another 
measure 

In terms of procedure to end the mandate, in most Member States, the procedure to end 
the mandate is similar to the procedure to establish it when upon initiative of the rep-
resented person while still capable. Revocation or termination can take place with a no-
tification to the authorities who confirmed the mandate, and needs to be registered in the 
national registry in Austria, Belgium, Denmark, Hungary and Malta. It needs to be con-
firmed by the competent authority in Finland and Sweden. In the Czech Republic, in ad-
dition to a notarial deed, the represented person may  destroy the act. Revocation may 
also take place upon initiative of the designated person who does not wish to be proxy 
anymore in Austria, Belgium, Germany, Denmark, Finland and Spain.  

The act may be terminated upon a Court decision in Austria, Belgium, Croatia, the Czech 
Republic, Ireland, Malta, the Netherlands (in contentious cases) and Romania. There are 
no requirements for a revocation while the person is still capable in Germany, Spain, Por-
tugal, and Romania, but a Court decision is necessary in other cases.  

69 However, Article 101 (2) CC allows for stipulating that (due to the reasons justified by the content of the le-

gal relationship, which is the basis for the power of attorney) the power of attorney will remain in force even 
after the death of the principal. An exclusion of the effect of the termination of the power of attorney in the 
event of the death of the principal has to be made expressly in the content of the power of attorney. 

78 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Key findings: 

•  The nature of private mandates varies across Member States. They may be specif-
ically regulated to address the situation of vulnerable adults, be regulated as gen-
eral  mandates  (Germany,  Malta),  or  regulated  by  general  law  on  mandates  (the 
Netherlands, Poland). These scenarios apply in 18 Member States.  

•  The scope of private mandates is usually quite unrestricted, within legal boundaries 
(e.g. rules applying to the representative as defined by law, conflict of interest). In 
most Member States where it applies, it may cover personal and material interests, 
with exceptions for highly personal issues in some countries (Belgium, Denmark, 
Finland, the Netherlands and Germany). The designation of the guardian is a key 
element covered in the Member State (the Czech Republic, Lithuania) and the sole 
purpose of a mandate in others (Croatia, Belgium). Except in a few cases (Belgium, 
the Czech Republic, France, Croatia and Ireland), the conditions set to be eligible 
as a representative are quite open.  

•  The formal requirements set in the Member States’ legal frameworks for the estab-
lishment of mandates are very heterogenous. There is a slight tendency to prefer 
unilateral  acts  over  contracts,  but  authentic  acts  and  private  deeds  are  overall 
equally represented among the mechanisms in place.  

•  Publication  is  never  a  condition  for  opposability  of  the  mandate  to  third  parties. 
Registration  into  registries  is,  however,  a  prerequisite  in  a  number  of  Member 
States70.  

•  The modification or end of the mandate usually follow the procedures set for the 
establishment of the mandate. Consequently, the procedures vary significantly from 
one  Member  State  to  another,  from  very  simplified  procedures  (especially  if  the 
protected person is still capable) to a judicial procedure. The conditions to end the 
mandate  beyond  the  death  of  the  protected  person  also  diverge,  but  usually  en-
compass changes in the situation or in the protection regime, and the protection of 
the vulnerable adult’s interest.  

2.2.3  Protection granted by operation of law 

2.2.3.1  Nature and scope 

In addition to the situation where protection is granted by Court or set up in a mandate, 
protection can be granted automatically by national law without the adoption of protective 
measures by a Court/administrative authority or the establishment of a private mandate 
in specific situations in a few Member States. This is the case in Austria, Belgium, Finland, 
Hungary, Slovenia, Spain and Sweden. 

Nature 

The possibility to adopt protective measures by operation of law corresponds mainly to two 
situations. In the first one, a person is obviously not in a position to protect their interests 
due to a degradation of their mental health, and the next of kin represents them in certain 
legal  actions.  This  applies  in  Austria,  Spain  and  Sweden.  Also  from  1  January  2023, 
legislation  on  marital  representation  will  apply  in  Germany.  The  second  one  applies  in 
relation to patient’s rights, whereby a person’s health requires representation in relation 
to medical decisions. This is provided in Belgium, Finland, Hungary and Slovenia.  

Scope  

In Spain and Sweden, the scope is not defined by law, even though in the latter case, 
representation and big purchases are excluded71. In Austria, the material scope is defined 
by law as broadly as possible to ensure that the proxy can act on behalf of the vulnerable 

70 Austria, Belgium (private mandate), Croatia, Denmark, Spain, France , Hungary and Lithuania. 
71 Answer provided by MSCA to the survey completed in the context of this study.  

79 

 
Study on the cross-border legal protection of vulnerable adults in the EU 

adults to best protect their interests. It covers judicial and administrative proceedings, the 
management of income and assets, as well as medical treatment and decisions on perma-
nent residence.  

The sphere of decisions is circumscribed to medical decisions (e.g. refusal of treatment, 
choice of medical professional or organ donations) in Belgium and to invasive medical care 
in Hungary. It covers medical treatment and any other rights covered by the Patient’s Right 
Act in Slovenia.  

Persons acting as representative 

Table 17 below lists the persons that can be designated as representative in the Member 
States concerned.  

Table 17: Persons acting as representative 

MS  Persons acting as representatives 

AT 

In an equal order: 

•  parents and grandparents 

•  adult children and grandchildren 

• 

• 

siblings, nieces and nephews 

spouse or registered partner and cohabiting partner if the latter has lived in 
the same household for at least three years. 

BE 

In order: 

• 

spouse, legal or factual cohabitant  

•  parents  

• 

children  

•  other close family members. 

ES 

‘De facto guardian’ 

•  no designation by law 

• 

▪ 

FI 

in practice often the spouse, partner, or the parents.  

close relative 

HU 

In order: 

• 

• 

• 

legal representative 

spouse or cohabitant with full capacity to act and living in the same house-
hold as the patient 

child of the patient with full capacity to act and living in the same household 

•  parent of the patient with full capacity to act and living in the same house-

hold 

• 

sibling of the patient with full capacity to act and living in the same house-
hold 

•  grandparent of the patient with full capacity to act and living in the same 

household 

•  grandchild  of  the  patient  with  full  capacity  to  act  and  living  in  the  same 

household. 

If none of the above persons can  exercise  the  right  to informed consent and the right to 
reject healthcare, the following persons living in the same household and with full capacity 
to act may exercise these rights (in order): 

• 

child  

•  parent  

• 

sibling  

80 

Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Persons acting as representatives 

•  grandparent  

•  grandchild. 

SE 

In order: 

• 

• 

spouse 

children 

•  grandchildren 

•  parents 

• 

siblings 

•  nieces/nephews. 

If  there  are  more  than  one  under  each  category,  they  represent  the  adult  concerned 
together. 

SI 

In order: 

• 

• 

• 

legal representative 

spouse, unmarried cohabiting partner or same-sex partner 

children or adopted children 

•  parents or adoptive parents 

• 

siblings 

•  grandparents 

•  grandchildren. 

As indicated above, from 1 January 2023 legislation on marital representation will be in-
troduced in Germany. 

2.2.3.2  Procedural rules 

Opposability 

No registration or publication is required in the Member States concerned, except for Aus-
tria, where registration to the Austrian Central Register of Representatives is to be estab-
lished. In the case of patients’ rights, representation enters into force from the moment 
that the patient becomes uncapable to exercise his or her patients’ right. Because of their 
nature,  the  patients’  rights  will  only  be  exercised  vis-à-vis  a  health  professional  or  a 
healthcare institution. Consequently, the rights are directly opposable towards health pro-
fessionals or a healthcare institution. 

Modifications and end of the representation 

Due to the nature of the representation, modifications are usually not possible.  

As for other types of protection, protection granted ex lege may end because of the death 
of the vulnerable adult, and of other circumstances such as the inability for the represent-
atives to ensure their functions or to protect the interests of the person concerned. How-
ever, where an order of representatives is provided by law, if persons from the same row 
are no longer in a position to consent on behalf of the vulnerable adult, the persons from 
the following row takes its place. 

In terms of procedure to end the representation, in Austria, the court shall order the 
termination of the protection generated by operation of law and, if necessary, appoint a 
judicial adult representative if the representative fails to act or acts in breach of duty or if 
the welfare  of the  represented person otherwise  requires it. In Spain, protection by law 
would end  with the placing of the  vulnerable adult under another  form of protection. In 

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Study on the cross-border legal protection of vulnerable adults in the EU 

cases where representation applies in the context of medical care, representation will end 
where the patient is no longer incapacitated. In Belgium, the patient can also revoke its 
representative with a dated and signed document. 

Key findings: 

•  Protection  by  operation  of  law  is  possible  only  in  seven  Member  States:  Austria, 
Belgium, Finland, Hungary, Slovenia, Spain and Sweden. In Austria, Spain and Swe-
den, such protection covers more or less the same scope as other types of repre-
sentation. In the remaining Member States, it applies in the context of medical care, 
for the exercise of the patient’s right of the vulnerable adult.  

•  Persons who can be designated as representatives under these circumstances are 

usually the closest relatives.  

•  Because of the nature of this type of protection, procedural rules are in most cases 
limited. Protection applies ex lege and thus does not need to be confirmed or rec-
ognised; modifications are not possible, and representation will end where the sit-
uation of the adult represented changes (death, recovery), or where another type 
of  protection,  i.e.  a  decision  of  a  judicial  or  administrative  authority,  is  adopted. 
Due to their nature, these measures are not recorded and apply de facto, except in 
Austria.  

2.2.4  National registries of measures of protection 

2.2.4.1  Content and functioning 

Most  Member  States  covered  by  the  study  have  set  up  registries  for  protective 
measures.  However  in  Bulgaria,  Cyprus,  Estonia,  Greece,  Poland  and  Romania  no 
registries were set up. Bulgarian law however provides for the establishment of a registry.  

The body managing the national  registry is  either the national  chamber  of notaries, the 
general  civil  registry  or  the  competent  body  for  managing  the  protective  measures  for 
vulnerable adults: 

• 

• 

• 

• 

In Austria, Belgium, Germany, the Czech Republic, Croatia, Malta and Slovakia the 
notaries manage the national registry. 
In Latvia, Ireland and Luxemburg, the registry is managed by the judicial authori-
ties. 
In France, Spain, Italy, Lithuania, Portugal and Slovenia the information on protec-
tive measures is included in the civil registry. 
In  Malta  and  Finland,  the  competent  authorities  for  protecting  vulnerable  adults 
manage the registries on protective measures. 

In most Member States the registries are centrally managed. Exceptions are Bulgaria, Italy 
and  Slovenia,  where  the  registries  are  or  will  be  managed  by  local  and  municipal 
authorities.  

The national registries in the Member States are different in content. Some registries only 
include  information  on  private  mandates  and  powers  of  attorneys,  while  others  include 
information on the protective measures adopted by judicial authorities.  

• 

In Austria, Belgium, Spain, France, Hungary, Italy, Ireland, Latvia, Malta, Portugal, 
Sweden, Slovenia and Slovakia, registries are established that include information 
of protective measures adopted by judicial authorities. 

•  Of these Member States, the registries in Belgium, Denmark Spain, Hungary , Italy, 
Luxemburg, Malta, Portugal and Slovakia include extracts or copies of the judicial 
decisions that imposed the protective measures. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

• 

In Austria, Belgium, Germany, Denmark, Spain, Croatia, Ireland and Portugal, the 
registries also include private mandates and powers of attorneys.  

In most Member States, the registry is centralised. This is the case for Austria, Belgium, 
the  Czech  Republic,  Germany,  Denmark,  Finland,  Spain,  Croatia,  Hungary,  Ireland, 
Luxemburg, the Netherlands and Slovakia.  

Table 18 below provides an overview of the content and functioning of the registries in the 
Member States where there is one.  

Table 18: Content and functioning 

MS  Content and functioning 

AT 

• 

• 

• 

The “Central Register of Representatives” includes information on all forms of adult 
representation (judicial protective measures and private mandates). 

The registry is established by notaries. 

The registry is centralised.  

BE 

Two registries on protective measures are established: 

• 

• 

• 

The “central registry of mandate contracts” on private mandates and declarations 
of preference on the curator to be appointed is managed by the Federation of Nota-
ries. 

The “registry of protection of persons”, on judicial protection measures is managed 
by the Ministry of Justice. 

The registries are centralised.  

BG 

•  No registry is currently in place.  

•  Bulgarian law envisages the establishment of a registry of the guardians/trus-

tees appointed.  

• 

The registry will be maintained by the mayors of the municipalities.  

CZ 

•  A national registry on declarations on the appointment of a guardian is in place. 

•  Notaries are responsible for managing this registry. 

• 

The registry is centralised.  

DE 

•  A registry on lasting powers of attorney and advanced decisions on medical 

treatment is in place.  

• 

The Federal Chamber of Notaries holds the registry. 

•  Registration is not obligatory but recommended.  

• 

The registry is centralised.  

DK 

•  Decisions on guardianship must be registered in the Danish Persons Registry. 

•  Future mandates (private mandates) must be created and signed digitally via a 
website.  It  must  then  be  upheld  by  a  notary  at  the  district  court.  Mandates  are 
publicly available in the Danish Persons Registry 

• 

The registry is centralised.  

ES 

•  Voluntary and judicial support measures must be recorded in the civil registry. 

• 

• 

The Civil Registry is a public registry of persons which is kept by an administrative 
authority (the legal officer of the administration of justice). 

The registry is centralised.  

FI 

•  All information on the guardianship is set on a registry of guardianship affairs. 

• 

• 

• 

FR 

The competent authority for the protection of vulnerable adults, the Digital and pop-
ulation data services agency is responsible for managing the registry.  

The registry is centralised. 

There  is  no  registry  of  legal  protective  measures,  but  measures  of  protection  of 
vulnerable adults are registered in the “civil registry”, which is also found in the 
margin of the birth certificate of the protected person. 

83 

Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Content and functioning 

• 

The filing and conservation of the registry is done by the clerkship of the tribunal 
where the person concerned is born or central civil status authorities when the 
person is born aboard.  

• 

The registry is not centralised. 

HR 

•  A registry of private mandates and of powers of attorneys is in place.  

• 

• 

The Chamber of Notaries maintains the registry. 

The registry is centralised.  

HU 

•  Hungary has two electronic registries: 

-  The registry of those under guardianship 

-  The registry of prior juridical acts.  

The National Judiciary Office operates the registries. 

The registries are centralised.  

• 

• 

IE 

•  A registry for judicial measures and for enduring powers of attorney is in place.  

IT 

LU 

LT 

• 

• 

The Office of Wards of Court keeps the registry. 

The registry is centralised. 

•  Decisions that institute guardianship and support administration are recorded in the 
registry of civil status. The registry of civil status is a registry kept by the local state 
authorities’ bodies.  

• 

• 

• 

• 

• 

• 

• 

• 

The tutelary judges keep a registry on protective measures, including: the registry 
of the guardianship, the registry of the curatorship and the registry of support ad-
ministration. 

The registry is not centralised. 

Judicial protective measures, including the declaration establishing the safeguard of 
justice, as well the curatorship and guardianship are kept in a register. 

It is managed by the Public Prosecution Office. 

The registry is centralised. 

The Lithuanian Registry of Legally Incapable Persons and Persons with Limited Legal 
Capacity includes information on judicial protective measures.  

The registry is managed by the State Enterprise Centre of Registers and is overseen 
by the Ministry of Justice. 

The registry is centralised. 

LV 

•  A registry for files regarding guardianship and trusteeship is in place.  

MT 

NL 

• 

• 

• 

• 

• 

• 

• 

• 

It is kept by the Orphans court  

The registry is not centralised. 

The Guardianship Board keeps an updated registry of guardianship orders.  

The Archivist of Notarial Acts keeps a registry on interdiction or incapacitation or-
ders. 

Private mandates are registered in the Public Registry of Malta.  

The  Centraal  curatele-  en  bewindregister  records  court  decisions  establishing  an 
adult guardianship or fiduciary administration.  

The courts publish the data in the registry and are responsible for the management 
of the register.  

The registry is centralised. 

PT 

•  Court decisions concerning the accompaniment (judicial protective measures) must 

be registered by the Civil Registry Office.  

•  Moreover the accompaniment, including concrete measures established which have 
relevance, must be registered in the Civil Registry, which falls under the responsi-
bility of the President of the Institute of Registries and the Notaries. 

• 

The registry is not centralised. 

SE 

•  Registries of representations done by administrators and conservators are in place.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

MS  Content and functioning 

• 

• 

The chief guardians keep registries. 

The registry is not centralised. 

SI 

SK 

•  No specially dedicated national registry of protective measures exists, but the fact 
that a person is placed under guardianship shall, in principle, be registered in several 
official registries and other official records, such as the Civil Registry and the regis-
ters of the Social Work Centres. 

• 

• 

• 

The registry is not centralised. 

There are no specific registries of protective measures but judgments on legal ca-
pacity are filed in the Notary Central Registry of Documents.  

The registry is centralised. 

2.2.4.2  Digitalisation and access 

Most (15) Member State have digitalised their registries. This is the case for Austria, 
Belgium,  the  Czech  Republic,  Denmark,  Spain,  Finland,  Hungary,  Lithuania,  the 
Netherlands, Portugal, Sweden and Slovakia. Italy, Malta and Slovenia have only digitalised 
a part of their registers.  

Access rights to the registries differ between the Member States. Table 19 below provides 
an  overview  of  the  persons  with  access  to  the  registry(ies).  Most  Member  States  limit 
access to the competent authorities for the purpose of registration and for the fulfilment 
of their tasks. The protected person concerned or his/her representative has access to the 
registries  in  Austria,  Belgium,  Denmark,  Spain  Croatia,  Luxemburg  and  Slovenia.  Some 
Member States, provide access to the general public (e.g. Denmark and the Netherlands). 
Bulgaria does not have rules set by law on this issue. 

Cross-border  access  is  only  allowed  in  Denmark,  Finland,  Italy,  the  Netherlands  and 
Slovenia (only partly).  In Denmark, the Danish Persons Registry is an online platform, 
digitally  accessible  to  anyone  as  it  does  not  require  a  special  log-in,  nor  social  security 
number of the person/institution looking for information. It is therefore accessible to any 
person,  even  in  cross-border  cases.  The  situation  is  the  same  in  Slovenia  and  the 
Netherlands  where  registries  are  digitalised  which  implies  that  anyone  can  access  the 
data.  In  Finland,  there  is  a  general  right  to  obtain  information  on  whether  a  person  is 
under  guardianship  and  the  name  of  the  guardian  or  holder  of  the  mandate.  On  the 
contrary, in Italy, there are strict conditions of access registries set out by national law. 
Access by private individual is limited to interested persons. The same conditions of access 
applicable to national requests also apply to foreign requests.  

85 

 
 
Study on the cross-border legal protection of vulnerable adults in the EU 

s
n
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d
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x 

x 

x 

x 

x 

x 

x 

x 

Table 19: Access Rights 

MS  Registry 

AT  Central Registry 

BE  Central 

registry  of  mandate 

contracts  

Central  registry  of  protection  of 
persons  

CZ  Registry  on  declarations  on  the 
appointment of a guardian 

DE  Registry  on  lasting  powers  of 
attorney and advanced decisions  

DK  Danish Persons Registry  

Future Mandate Register 

ES  Civil Register 

FI 

Registry of guardianship affairs  

FR  Civil Register 

HR  Registry of private mandates and 

of powers of attorneys  

HU  Registry  on  people  placed  under 

guardianship 

Registry  on  prior  juridical  acts: 
courts  and  prosecutor’s  office, 
investigating 
and 
authority 
national security services. 

IE  Wardship  of  court  and  powers  of 

attorney 

IT 

Registry of Civil Status (extracts) 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

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x 

x 

x 

x 

x 

x 

86 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

Enforcement authorities 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
MS  Registry 

Registry of Civil Status (full 
copies) 

a
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x 

Registries on protective measures 

x 

LU  Special  registry  for  safeguards  of 

justice 

LT 

Registry  of  Legally 
Incapable 
Persons and Persons with Limited 
Legal Capacity  

x 

x 

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x 

x 

x 

LV  Registry 

for  guardianship  and 

x 

x 

x 

trusteeship 

MT  Registry for guardianship orders 

r
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x 

x 

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x 

x 

x 

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Study on the cross-border legal protection of vulnerable adults in the EU 

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Person with personal and concrete interest for 
the protection of a legally relevant situation 

x 

x 

x 

x 

x 

Enforcement authorities 

Person which is recognised as a legitimate 
interest by the Guardian Board 

or 

x 

x 

x 

x72  Commissioner for the Promotion of Rights of 

Registry 
incapacitation orders  

for 

interdiction 

Public  Registry  of  Malta  (private 
mandates) 

NL  Central  registry  for  curatorship 

x 

x 

x 

and administration 

PT  Civil Registry  

x 

x 

x 

SE  Registries of representations  

SI 

Civil Registry  

x 

x 

x 

Databases  of  the  Social  Work 
Centres 

x 

x 

x 

x 

Persons with Mental Disorders 

Not accessible to the public 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

x 

For internal use only 
Extracts upon request 

Inspectorates 

For internal use only 

SK  Registry (Certified copies) 

x 

x 

Persons proving a legal interest 

72 under supervision of the Court. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

Key findings:  

•  All but six Member States have set up registries for protective measures. These 
registries  cover  information  on  both  judicial  protective  measures  and  private 
mandates.  

•  These registries are mostly managed centrally, either by the chamber of notaries 

or by other authorities, such as the civil registries or judicial authorities. 

•  Access to the registries is mainly limited to the competent authorities and the 
persons concerned. Cross-border access is only possible in five Member States. 

•  Fifteen Member States have digitalised their registries. 

2.3  Regulatory framework applying to cross-border situations  

The  present  section  provides  an  overview  of  the  functioning  of  the  main  private 
international law rules that apply to cross-border situations involving vulnerable adults.  

2.3.1  Applicable domestic legal framework  

As explained in Section 2.1.1 above, Austria, Belgium, Cyprus, the Czech Republic, Fin-
land, France, Estonia, Latvia, Germany and Portugal have ratified the 2000 Hague Con-
vention. In Germany and Latvia, cross-border procedural rules are handled in the act 
transposing the Hague Convention in the national legal order. In other (monistic) 
systems, the Convention is directly applicable and constitutes the main legal frame-
work to regulate on cross-border situations involving vulnerable adults. Additional ele-
ments are provided either in an internal private international law act (in Belgium, Czech 
Republic, Estonia) or in domestic civil law (France and Portugal) and/or procedural law 
(Austria and France). In Finland, cross-border aspects are regulated in the legislation 
on the protection of vulnerable adults.  

For those Member States which are not parties to the Convention, rules regulating the 
cross-border aspects of the protection of vulnerable adults are in place either in a do-
mestic  code  or  law  on  private  international  law  (in  Bulgaria,  Croatia,  Hungary, 
Italy, Poland, Romania, Sweden, Slovenia and Slovakia) or in the parts of the Civil Code 
that deal with aspects of private international law (Greece, Spain, the Netherlands, Lith-
uania).  In  some  Member  States,  the  legislation  on  civil  procedure  also  regulates 
some aspects of cross-border procedures (Malta and the Netherlands). In Denmark and 
Ireland, the legislation that deals with the protection of vulnerable adults also 
regulates the cross-border aspects of their protection.  

Most Member States are not parties to bilateral or multilateral treaties that spe-
cifically  concern  the  cross-border  protection  of  vulnerable  adults.  If  Member 
States are party to bilateral or multilateral treaties, these treaties are generic 
treaties regulating aspects of private international law in the context of personal 
and  family  law  (for  instance  Poland  and  Hungary).  All  EU  Member  States  are 
party to the UNCRPD.  

Key findings 

• 

In the Member States which are parties to the Hague Convention, in addition to 
the rules set by the Convention, some elements are provided in domestic acts, 
on  either  international  private  law,  civil  (procedural)  law,  or  the  protection  of 
vulnerable adults.  

•  For those Member States which are not parties to the Convention, in 12 Member 
States73, the rules on the cross-border aspects applying to vulnerable adults are 
governed by the general rules on private international law. Only in a few Member 

73BG, HR, IT, PL, RO, SE, SI, SK, EL, ES, NL and LT.  

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Study on the cross-border legal protection of vulnerable adults in the EU 

States74 is cross-border protection of vulnerable adults as such regulated in do-
mestic law. 

•  Most Member States are not parties to bilateral or multilateral treaties specifically 
concerning  the  cross-border  protection  of  vulnerable  adults.  Nevertheless,  in 
several Member States, some treaties dealing generally with issues in the field 
of private international law (e.g. the recognition of judgments) also apply in mat-
ters of the protection of vulnerable adults.  

2.3.2  Private international law rules applicable in the Member States 

2.3.2.1  Jurisdiction and applicable law  

The rules applicable to the determination of the competent jurisdiction and applicable 
law in a cross-border case can be distinguished between the Member States which are 
parties to the 2000 Hague Convention and the Member States which are not parties to 
the Convention, as follows. 

Member States which are parties to the Convention  

In the contracting States (Austria, Belgium, Cyprus, the Czech Republic, Estonia, Fin-
land, France, Germany, Latvia and Portugal), the rules which determine the juris-
diction and the applicable law in cross-border cases regarding vulnerable adults are 
those set out in the Convention. 

With regard to jurisdiction, Article 5 of the Convention provides that: 

“(1) The judicial or administrative authorities  of the Contracting State of the  habitual 
residence of the adult have jurisdiction to take measures directed to the protection of 
the adult's person or property.  

(2) In case of a change of the adult's habitual residence to another Contracting State, 
the authorities of the State of the new habitual residence have jurisdiction.”  

This provision determines the competent jurisdiction for Contracting States in matters 
of protection of vulnerable adults and their property. Authorities of the Contracting State 
where the vulnerable adult has their habitual residence are the ones competent to adopt 
protective measures.  

Regarding the applicable law, Article 13(1) of the Convention provides as a principle 
that the competent court shall apply its own law (lex fori).  

Member States which are not parties to the Convention 

With regard to non-contracting States, different grounds may apply in cases where a 
vulnerable adult needs  protection. As illustrated in  Table 20 below, under the private 
international law rules of Member States which are not parties to the Convention, the 
most common grounds for jurisdiction are:  

• 
• 

the nationality of the person to be protected; and/or  
their domicile or habitual residence.  

There  are,  however,  other  grounds  for  jurisdiction.  For  instance,  in  Spain,  national 
courts are also competent when it comes to adopting provisional or protective measures 
with respect to persons (and/or their property) who are on Spanish territory but who do 
not have their habitual residence in Spain, provided that these measures must be ful-
filled in Spain. In Poland, national courts may also, if necessary, deal with the protec-
tion of the property of a foreigner with a habitual residence abroad if this is necessary 
with  regard  to  the  interest  of  the  foreigner.  Furthermore,  Polish  courts  may  be 

74 DK, IE, LT.  

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competent if the case shows a sufficient connection with the Polish legal order or if there 
is an urgent need to ensure the protection of a foreigner with their habitual residence 
abroad.  

There are also specific cases of exclusive jurisdiction. For instance, in Poland, pursuant 
to the Code of Civil Procedure, the jurisdiction of Polish courts is exclusive in cases of 
incapacitation if the person to whom the petition for  incapacitation  relates is a  Polish 
citizen, residing and habitually residing in Poland. In Romania, there is exclusive juris-
diction  of  Romanian  courts  for  placement  under  a  judicial  interdiction,  irrespective  of 
the citizenship of the person if the latter has their domicile in Romania.  

The applicable law is determined in most non-contracting States by the habitual res-
idence and nationality of the protected person:  

• 

• 

• 

In Spain, the law of the habitual residence of the protected person is the only 
relevant connecting factor.  
In Greece, Italy, Luxemburg and Slovenia, the nationality of the person con-
cerned is the only connecting factor.  
In Hungary,  Ireland,  Poland, Romania  and Slovakia, the applicable law is 
determined based on nationality or habitual residence.  

The  legislation  of  certain  Member  States,  such  as  Bulgaria  and  Italy,  specifies  that 
domestic courts may apply the law of the forum when adopting urgent and provisional 
measures. 

Table 20 below provides an overview of the content of private international law rules of 
non-contracting States.  

Table 20: Jurisdiction and applicable law in the Member States that are not party to 
the Convention  

MS  Jurisdiction  

Applicable law 

BG 

for 

Jurisdiction 
limitation  or 
deprivation of legal capacity is based on 
nationality. 

the 

Jurisdiction  for  the  establishment  and 
termination 
or 
guardianship 
is  based  on  habitual 
trusteeship 
residence.  

of 

DK 

EL 

ES 

Jurisdiction  seems  based  on 
the 
habitual  residence  of  the  person 
concerned. 

Jurisdiction  for  the  deprivation  and 
restriction  of  capacity  is  based  on 
habitual  residence  and  place  of 
property.  

Jurisdiction  in  matters  related  to  the 
capacity  of  persons  and  in  matters 
related  to  the  protection  measures  of 
vulnerable  adults  or  their  property  is 
based on habitual residence. 

• 

• 

• 

• 

Foreign  procedural  actions  or  official  docu-
ments,  are  governed  by  the  law  of  the 
State  from  which  the  actions/docu-
ments originate. 

The conditions and the consequences of the 
limitation or deprivation of legal capacity of 
the person are settled by the law of nation-
ality  of  the  person;  when  that  person  has 
habitual residence in Bulgaria, Bulgarian law 
applies. 

Establishment  and  the  termination  of  the 
guardianship and trusteeship is governed by 
the  law  of  the  State  of  habitual  resi-
dence of the protected person or guardian. 

temporary  and  urgent  protective 

For 
measures, Bulgarian law may be applied. 

• 

Lex fori seems to apply.  

Deprivation and restrictions of capacity are regulated 
by the law of nationality of the person to whom 
these measures relate.  

The applicable law for the protection of adult persons 
is the law of habitual residence.  

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MS  Jurisdiction  

Applicable law 

for 

Jurisdiction 
the  adoption  of 
provisional  or  protective  measures 
(provided  that  the  measures  must  be 
fulfilled  in  Spain)  is  based  on  the 
location of the person or property in 
Spain. 

HR  Jurisdiction  in  matters  related  to  the 
personal  status  of  a  person,  such  as 
deprivation  and  restoration  of  legal 
capacity, may be based on nationality 
or habitual residence. 

for 

the  adoption  of 
Jurisdiction 
provisional  or  protective  measures  is 
based on the location of the person or 
property in Croatia. 

HU  Jurisdiction 

for 

the  adoption  of 
protective  measures  may  be  based  on 
nationality or habitual residence.  

IE 

Jurisdiction  for  the  determination  of 
incapacity  and  for  the  application  of 
protective  measure  may  be  based  on 
nationality or habitual residence. 

IT 

Jurisdiction  is  based  on  nationality  or 
habitual residence.  

Italy  is  the  competent  jurisdiction  for 
provisional  and  urgent  measures  of 
protection  of  vulnerable  adults  with 
regard  to  property  if  the  property  is 
located in Italy and where it is necessary 
to  supplement  or  modify  a  foreign 
decision which is recognised in Italy. 

LU 

Jurisdiction is based on nationality.  

LT 

for 

the  declaration  of 
Jurisdiction 
incapacity  is  based  on  the  location  of 
property  in  Lithuania,  nationality  or 
permanent  residence  (for  stateless 
persons) in Lithuania.  

MT  Jurisdiction is based on nationality (for 
Maltese citizens, provided they have not 
fixed  their  domicile  outside  of  Malta), 
residence (persons domiciled, resident 
or  present  in  Malta),  or  place  of 
property (property situated or existing 
in Malta). 

Maltese  courts  are  also  competent  to 
implement an obligation contracted or to 
be implemented or enforced in Malta, or 
if  designated  as  a  competent  court  by 
the parties. 

•  Restrictions  of  legal  capacity  are  regulated 
by the law of nationality of the person con-
cerned.  

• 

The preconditions for deprivation and regain 
of legal capacity, placement under guardian-
ship  and  termination  of  guardianship,  are 
regulated  by  the  law  of  habitual  resi-
dence. 

• 

temporary  and  urgent  protective 

For 
measures, Croatian law applies. 

•  Deprivation  and  restrictions  of  capacity  are 

regulated by the law of nationality.  

• 

• 

• 

The conditions for placement under guardi-
anship,  or  for  other  protection  measures, 
that do not affect the capacity of an adult to 
act,  are  regulated  by  the  law  of  habitual 
residence.  

Protective  measures  are  regulated  by  the 
law of habitual residence.  

Enduring  powers  of  attorney  are  regulated 
by law of nationality, lex rei sitae or law 
of habitual residence.  

The conditions for adopting protective measures and 
the  relationship  between  the  caregiver  and  the 
protected  person  are  governed  by  the  law  of 
nationality of the person to whom these measures 
relate. Under the rule on renvoi, cases exist where 
the  law  governing  the  protection  of  a  foreigner  is 
eventually Italian law. 

For the status of a person (including vulnerability), 
the law of nationality applies. 

Guardianship  and  curatorship  are  governed  by  the 
law  of  the  domicile  of  the  person  to  whom  the 
measures relate.  

The  law  of  the  nationality  or  place  of  domicile, 
residence  or  presence  of  the  vulnerable  adult 
applies. 

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MS  Jurisdiction  

Applicable law 

NL 

Jurisdiction 
residence.  

is  based  on  habitual 

PL 

Jurisdiction  may 
nationality or habitual residence. 

based 

be 

on 

Polish courts may also have jurisdiction 
for the  protection of the property  of 
a  foreigner  with  habitual  residence 
abroad if this is necessary with regard to 
the interest of the foreigner.  

Polish  courts  may  also  be  competent  if 
the case shows a sufficient connection 
with  the  Polish  legal  order  or  if 
there is an urgent need to ensure the 
protection  of  a  foreigner  with  their 
habitual residence abroad.  

There  are  also  specific  cases  of 
exclusive jurisdiction, e.g. in case of 
incapacitation, if the person to whom the 
petition  for  incapacitation  relates  is  a 
Polish  citizen,  residing  and  habitually 
residing in Poland. 

RO  Jurisdiction 

for 

and 
on 
curatorship  may 
nationality  or  domicile  (or  habitual 
residence if no domicile). 

guardianship 
based 

be 

under 

placement 

judicial 
For 
interdiction,  only  Romanian  courts  are 
competent 
the 
irrespective 
citizenship,  if  the  person  has  their 
domicile in Romania.   

of 

Following  the  decision  of  the  Supreme  Court,  the 
applicable  law  in  cases  on  the  protection  of 
vulnerable  adults  in  cross-border  situations  is 
determined  by  the  rules  of  the  2000  Hague 
Convention, i.e. lex fori. 

• 

• 

• 

The establishment of guardianship, curator-
ship  or  other  protective  measures  for  an 
adult  is  governed  by  that  person’s  law  of 
nationality or Polish law if the domicile or 
habitual residence is in Poland.  

Enforcement of protective measures is sub-
ject to the law of habitual residence. 

The  termination  of  a  protection  measure  is 
governed by the national law of the adult. 

• 

• 

The state and capacity of natural persons are 
governed by the law of nationality. 

Protective measures to be taken in the case 
of a fully capacitated person are governed by 
the law of habitual residence.  

•  When  powers  of  representation  are  stipu-
lated,  there  is  the  possibility  to  choose  the 
applicable law. 

SE 

of 
Jurisdiction 
guardianship  and  trusteeship  may  be 
based on nationality or domicile.  

proceedings 

in 

cases 

and 
In 
administratorship  of  vulnerable  adults,  lex  fori 
applies. 

conservatorship 

concerning 

Swedish  courts  have  jurisdiction  in 
proceedings  of  protective  measures  for 
Swedish citizens residing abroad.  

SI  Regarding 

guardianship  measures, 
Slovenian  authorities  have  exclusive 
competence for Slovene citizens.  

SK 

Jurisdiction in proceedings on protective 
is  based  on  habitual 
measures 
residence. 

• 

• 

• 

• 

• 

In guardianship cases, the law of national-
ity of the protected person applies. 

In  guardianship  cases,  Slovene  law  applies 
(lex fori). 

Legal capacity of a person shall be governed 
by the law of nationality. 

The applicable law for the conditions for es-
tablishment or termination of guardianship is 
the law of habitual residence. 

The  obligation  to  accept  and  carry  out  the 
guardianship is regulated by the law of na-
tionality of the guardian. 

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MS  Jurisdiction  

Applicable law 

• 

Legal  relations  between  the  guardian  and 
the  protected  person  are  regulated  by  lex 
fori of the guardianship court.  

Parallel proceedings 

In  both  Member  States  which  are  parties  to  the  Convention  and  those  which  are  not 
parties, the situation may occur that a court in one State is seized of a matter while a 
Court  in  another  State  is  already  dealing  with  the  same  issue.  This  is  of  particular 
interest for the protection of vulnerable adults in cross-border cases.  

In situations of parallel proceedings, if, seized of proceedings concerning the protection 
of  an  adult  (e.g.,  proceedings  aimed  at  the  appointment  of  an  administrator,  or 
analogous figure), a Court becomes aware that proceedings concerning the protection 
of the same adult are pending in another country, it can either:  

•  disregard the foreign proceedings and decide the matter on its substance; or  
• 

stay the proceedings, provided that certain conditions are met. 

The 2000 Hague Convention builds on the principle of reciprocity and provides rules on 
the  coordination  of  parallel  proceedings.  Those  rules,  however,  only  work  where  the 
proceedings in question are pending in two Contracting States. On the contrary, these 
rules  will  not  apply  if  the  foreign  proceedings  in  question  are  pending  in  a  non-
contracting State.  

The  table  below  provides  an  overview  of  the  rules  applicable  to  cases  of  parallel 
proceedings  in  such  instances,  and  where  Member  States  are  not  parties  to  the 
Convention.  

Table 21: Rules applicable to parallel proceedings in the Member States 

National court disregards the foreign 
proceedings and decide the matter as to 
its substance 

AT, CY, IE, LV, SK 

National court stays the proceedings  

BE, BG, CZ, DK, EE, ES, FI, FR, HR, HU, IT, 
LT, LU, MT, NL, PL, PT, RO, SE, SI75 

In a few Member States, the national court will disregard the foreign proceedings and 
decide  the  matter  on  its  substance.  On  the  contrary,  in  most  Member  States,  the 
national court will stay the proceedings, provided that certain conditions are met. The 
most common conditions for the national court to stay the proceedings are:  

• 
• 
• 

• 

the other proceeding has been previously initiated; 
there is an identity of parties, grounds and request between the two proceedings;  
it is expected that the decision will be suitable for recognition and enforcement 
in the State of the court that stays the proceeding; 
it is expected that the decision will be taken within a reasonable time. 

Key findings 

• 

In the contracting States, the rules which determine the jurisdiction and the ap-
plicable law in cross-border cases regarding vulnerable adults are those set out 
in  the  Convention,  in  Article  5,  which  attributes  jurisdiction  to  the  state  of 

75 The information is not available for DE and EL.  

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• 

• 

habitual residence, and Article 13, which provides for the application by the au-
thorities competent of their own law.  
In the non-contracting States, a number of different situations apply, depending 
on the situation. Jurisdiction is based on the nationality of the person concerned 
in two Member States76, on the habitual residence in five Member States77, and 
both,  or  either  of  the  two  depending  on  the  circumstances,  in  the  remaining 
Member States.  
In case of parallel proceedings, in a few Member States (five), the national court 
will disregard the foreign proceedings and decide the matter on its substance. In 
most Member States (20), the national court will stay the proceedings, provided 
that certain conditions are met. 

2.3.2.2  Recognition of foreign decisions 

Member States which are parties to the Convention  

Article 22 (1) of the 2000 Hague Convention provides that ‘the measures taken by the 
authorities  of a Contracting State shall be recognised by  operation of law in all other 
Contracting States’. Recognition of measures between Contracting States is therefore 
automatic.  

In  addition,  Article  23  provides  for  a  recognition  procedure  open  to  any  interested 
person  who  may  request  from  the  competent  authorities  of  a  Contracting  State  the 
recognition  or  non-recognition  of  a  measure  taken  in  another  Contracting  State. 
Pursuant to this provision, the procedure is governed by the law of the requested State.  

Various procedures apply depending on the Member State. 

• 

• 

• 

• 

In Austria, anyone who has a legal interest may turn to the Guardianship Court 
(Pflegschaftsgericht, a specific section within the court of first instance) and ask 
for the recognition of a foreign decision. The application shall be accompanied by 
a  copy  of  the  decision,  proof  of  its  legal  force  or  provisional  effectiveness  and 
proof that the adult concerned has been heard. 
In Belgium, the judge of the peace is competent for recognising foreign deci-
sions that concern the protection of vulnerable adults. The request is submitted 
to the judge of the peace, by means of an application to the Central register of 
protection of persons (Centraal register van bescherming van de personen - Reg-
istre  central  de  la  protection  des  personnes).  Upon  receiving  the  request,  the 
court  shall make a decision without delay after examining, where appropriate, 
the fulfilment of the conditions referred to in Article 22 of the 2000 Hague Con-
vention. 
In the Czech Republic, national law provides that only foreign decisions in prop-
erty matters which comply with conditions for recognition set by law (final and 
conclusive decision and lack of grounds for refusal of recognition) may be recog-
nised. An enforcement of a foreign decision shall be ordered by a decision of a 
Czech court. The request for a declaration of enforceability may be filed together 
with the request for enforcement of a decision pursuant to another legal act. In 
this case the Court shall decide in both matters in a single decision in two sepa-
rate statements, which must be duly grounded. The statement ordering the en-
forcement of a decision may not become final and conclusive before the state-
ment  on  the  declaration  of  enforceability.  The  competent  court  is  the  general 
court of the requesting party. 
In Estonia, if there is a dispute on recognition or if it is necessary to a person 
due to another reason for the purpose of exercising their rights, recognition may 
be requested. (§ 620 (3) of the Code of Civil Procedure). Incidental recognition 
is possible. 

76 LU, exclusive competence for Slovenian citizens in SI. 
77 DK, EL, ES, NL and SK. 

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• 

• 

• 

• 

In Finland, a person may submit an application to Helsinki district court which 
shall then rule on the recognition 
In France, any interested party may have a legitimate interest in removing any 
doubt  as  to  whether  or  not  there  is  a  ground  for  non-recognition  of  a  foreign 
decision. This preventive action may take the form of an action for recognition 
(action en opposabilité), or of an action for non-recognition (action en inoppos-
abilité). The judicial court is competent.  
In Germany, an incidental recognition procedure for interested persons is reg-
ulated  in  Section  8  ErwSÜAG  which  refers  to  Sections  275,  276,  297  Abs.  5, 
Sections  308,  309  and  311  FamFG  which  are  to  be  applied  mutatis  mutandis. 
These Sections regulate the participants of the procedure, the appointment of a 
guardian ad litem, communication of decisions to other courts, public authorities, 
or other public agencies. 
In Latvia, court judgments and decisions shall be enforced after they enter into 
lawful effect, except for the cases where, according to the law or a court judg-
ment, the judgment and decision shall be enforced without delay. In this case, 
the  indication  that  the  judgment  and  decision  shall  be  enforced  without  delay 
must be contained in the writ of execution itself. The Ministry of Justice is the 
competent authority responsible for the enforcement of decisions. 

If Article 22 of the Hague Convention sets out the principle of recognition by operation 
of  law  in  each  Contracting  State,  it  is  limited  to  the  measures  taken  in  another 
Contracting  State.  Regarding  the  recognition  of  measures  taken  in  non-contracting 
States, although the provisions of the Hague Convention are not applicable, the Czech 
Republic,  Estonia,  Finland,  France,  and  Germany  nevertheless  provide  for 
recognition by operation of law (de plano) of these measures. 

On the contrary, in some contracting States, the recognition is not possible by operation 
of law.  

• 

• 

• 

• 

In Austria and Belgium, a request for recognising a foreign decision needs to 
be submitted to the competent court so that the court decides on the recognition 
of the foreign decision.  
In Cyprus, an application for summons accompanied by an affidavit for recog-
nising a foreign decision needs to be submitted to the competent court.  
In Latvia, a foreign decision needs a judicial declaration in order to be recog-
nised. 
In Portugal, a request for recognition must be introduced for a foreign decision 
to be recognised. The request must include the foreign decision to be reviewed.  

Table 22: Recognition in Contracting States of measures taken in Non-contracting 
States  

MS  Is the recognition of measures taken in a Non-Contracting State automatic? 

(yes/no) 

AT  No  

BE  No 

CY  No 

CZ 

Yes 

DE  Yes 

EE 

Yes 

FI 

Yes 

FR 

Yes 

LV  No  

PT  No 

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Member States which are not parties to the Convention  

In non-contracting States,  recognition of  foreign measures  can take  place either by 
operation of law or by judicial recognition: 

• 

• 

In Denmark, Italy, Poland, and Slovenia, foreign decisions in matters of pro-
tection of vulnerable adults are recognised by the operation of the law.  
In the other Member States, foreign decisions in matters of protection of vulner-
able  adults  are  only  recognised  after  a  recognition  decision  from  a  judicial 
authority, provided that some conditions are met.  

2.3.2.3  Enforcement of foreign decisions 

Member States which are parties to the Convention  

Article 25 of the 2000 Hague Convention provides that the enforcement of measures 
taken  in  a  Contracting  State  and  enforceable  there  shall  be  done  according  to  the 
procedure  provided  in  the  law  of  the  State  where  the  interested  party  requests  its 
enforcement. Contracting States are not required to adopt a specific procedure but shall, 
pursuant to Article 25, paragraph 2, provide for a “simple and rapid procedure” though 
remain free as to the means.  

Germany does provide for a simplified procedure. A decision from another Contracting 
State that is enforceable there and requires acts of enforcement in Germany must be 
declared enforceable pursuant to Article 25 of the Convention by way of being provided, 
upon application, with an endorsement for enforcement (‘Vollstreckungsklausel’). In the 
same vein, in Austria, national law provides that a declaration of enforceability may be 
applied  for  at  the  same  time  as  the  declaration  of  recognition,  to  the  extent  that 
enforcement is sought in proceedings other than in litigation. The court shall decide on 
both applications at the same time. In Latvia, a rapid procedure is provided whereby 
the party requesting the enforcement of a foreign decision can indicate that it shall be 
enforced without delay in the writ of execution itself. 

However,  in  France,  applicants  apply  to  the  exequatur  procedure  before  the  judicial 
court (Tribunal Judiciaire) with compulsory legal representation, which corresponds to 
a longer and more costly ordinary law procedure. 

Belgian, Cypriot, and Portuguese laws provide that the same rules and proceedings 
shall apply for both the recognition and enforcement of a foreign decision. In Estonia, 
the general rules on enforcement of foreign decisions shall apply to decisions related to 
the protection of vulnerable adults. On the contrary, in Finland, enforcement of foreign 
decisions related to the protection of vulnerable adults is regulated by a specific act (the 
Guardianship Services Act).  

In the Czech Republic, national law provides that enforcement of a decision of a foreign 
authority  may  be  ordered  in  the  Czech  Republic  only  in  property  matters.  Thus,  if  a 
decision to be enforced in the Czech Republic dealing with protection of vulnerable adults 
concerns a property matter, its enforcement may be ordered by a Czech Court.  

Article 22, paragraph 2, of the 2000 Hague Convention provides for several grounds 
pursuant  to  which  recognition  of  measures  taken  by  the  authorities  of  another  State 
party  to  the  Convention  may  be  refused.  In  particular,  pursuant  to  this  Article, 
‘recognition may […] be refused:  

a. 

if the measure was taken by an authority whose jurisdiction was not based on, 
or was not in accordance with, one of the grounds provided for by the provisions 
of Chapter II; 

b.  if the measure was taken, except in a case of urgency, in the context of a judicial 
or  administrative  proceeding,  without  the  adult  having  been  provided  the 
opportunity to be heard, in violation  of fundamental principles of procedure of 

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the requested State; 

c. 

if such recognition is manifestly contrary to public policy of the requested State, 
or conflicts with a provision of the law of that State which is mandatory whatever 
law would otherwise be applicable; 

d.  if the measure is incompatible with a later measure taken in a non-Contracting 
State which would have had jurisdiction under Articles 5 to 9, where this later 
measure fulfils the requirements for recognition in the requested State; 

e. 

if the procedure provided in Article 33 has not been complied with.’ 

As  provided  in  Article  25,  paragraph  3,  of  the  Convention,  in  Contracting  States  the 
declaration of enforceability may be refused only for one of the reasons above. The 
grounds for refusing the recognition of a foreign decision also apply to the enforcement 
of such decisions.  

Member States which are not parties to the Convention  

In  most  non-contracting  States78,  to  enforce  vulnerable  adults’  protection  measures 
taken abroad, a declaration of enforceability by a judicial authority of the State where 
the decision is to be enforced is required. There are, however, specific situations where 
the declaration may not be required. For instance, in Lithuania, although the principle 
is that a declaration of enforceability is needed to recognise and enforce foreign deci-
sions regarding vulnerable adults, according to the practice of Lithuanian courts, in cases 
where the subject matter is not a dispute, but recognition of a status or a certain right 
(e.g. guardianship or curatorship), there is no need for compulsory enforceability action 
– it is sufficient to recognise the legal status of the person concerned. 

On the contrary, in some non-contracting States, such as Denmark, Greece, Hungary, 
and Sweden, an exequatur procedure is, in principle, not required to enforce a foreign 
decision  in  matters  of  protection  of  vulnerable  adults.  There  are,  however,  some 
exceptions. 

Where  an  enforcement  procedure  is  required  to  enforce  the  foreign  measure,  the 
grounds  for  refusing  recognition  or  enforcement  of  a  foreign  decision  in  matters  of 
protection of vulnerable adults are provided by national law. In many Member States, 
the recognition and admission of enforcement of foreign decisions are interlinked and 
the  grounds  for  refusal  are  the  same.  For  instance,  in  Bulgaria,  Italy,  and  Poland, 
grounds for refusal for both recognition and enforcement procedures are listed in the 
same legal provision. In Denmark, Greece, Ireland, and Lithuania, the requirements 
that must be met for recognition and enforcement of a foreign decision are common. 

The grounds for refusal provided for in the national laws of the non-contracting Member 
States  are  usually  comparable  to  those  provided  in  Article  22,  paragraph  2,  of  the 
Convention. In  some  States,  grounds  for  refusal  are,  however,  quite  limited.  For 
instance, in Denmark, a foreign decision regarding the protection of an adult may be 
recognised  and  enforced  in  Denmark,  if  in  addition  to  establishing  that  the  foreign 
proceeding was first, the case in Denmark and the foreign case are identical. In contrast, 
some Member States provide for a very comprehensive list of grounds for refusal. For 
instance, Bulgaria, Croatia, Hungary, Poland, and Spain provide for more than five 
different grounds.  

Grounds for refusal of recognition or enforcement of a foreign decision most frequently 
provided in the legal system of non-contracting States are:  

• 

• 

the decision is contrary to the national public policy (Bulgaria, Croatia, Greece, 
Hungary, Italy, Malta, the Netherlands, Spain,); 
the proceedings are not identical (same parties, same cause of action) (Hungary, 
the Netherlands, Poland); 

78 BG, ES, HR, IE, IT, LU, LT, LT, MT, NL, PL, RO, SI, and SK. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

• 

• 

• 

the foreign decision is not final (res judicata) (Croatia, Ireland, Italy, Malta, Ro-
mania); 
the rights of the parties have been violated (e.g., right to defence, right to be 
heard) (Croatia, Poland); 
the decision is contrary to a national decision taken before by a national court or 
authority (Italy, Poland). 

Key findings 

• 

• 

• 

In the contracting Member States, recognition and enforcement are regulated by 
Chapter IV  of the  Hague  Convention. Various  procedures apply to recognition, 
with variable levels of complexity, depending on the Member State. The simple 
and rapid procedure for enforcement referred to in Article 25 paragraph 2 of the 
Convention is in place in Austria, Germany and Latvia. The grounds for refusal 
(and enforcement) are directly regulated in Article 22, paragraph 2, of the Con-
vention. However, the Permanent Bureau of the Hague Conference has no en-
forcement powers in case a party fails to comply with their international commit-
ments. 
In the non-contracting Member States, recognition of foreign measures can take 
place either by operation of law (in Denmark, Italy, Poland and Slovenia) or by 
judicial recognition (in the remaining Member States).  
In most of these States79, to enforce the measures taken abroad, a declaration 
of enforceability by a judicial authority of the State where the decision is to be 
enforced is required. On the contrary, in some States (Denmark, Greece, Hun-
gary,  and  Sweden),  an  exequatur  procedure  is,  in  principle,  not  required.  The 
grounds for refusal provided for in the national laws of the non-contracting Mem-
ber States are usually comparable to those provided in the Convention. In some 
States  (e.g.  Denmark),  grounds  for  refusal  are  more  limited;  while  in  others, 
additional or different grounds from those listed in the Convention are listed un-
der national law (Bulgaria, Croatia, Hungary, Poland, and Spain).  

79 BG, ES, HR, IE, IT, LU, LT, LT, MT, NL, PL, RO, SI, and SK. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

3  Practice on cross-border cases 

3.1  Use of protective measures in the Member States 

This section presents the data obtained from the different types of stakeholders (MSCAs, 
legal practitioners and non-technical respondents (e.g., NGOs and medical/social care 
organisations)  on  the  overall  trends  in  the  number  of  protective  measures  and  cases 
with cross-border implications between 2015 and 2020.  

3.1.1  Trends in the number of protective measures 

Total protective measures 

Limited statistics are available on the overall number of protective measures adopted 
over the past five years. Only ten out of the 18 MSCAs  that responded to the survey 
provided  figures  which  are  compiled  in  Table  23  below80.  Belgium,  Germany,  Italy, 
Malta, Poland and Sweden indicated that the data requested is not recorded.  

Table 23: Total number of decisions adopted on protective measures (2015-2020) 

MS 

2015 

2016 

2017 

2018 

2019 

2020 

Average annual 
increase/decrease 

AT 

CZ 

FR 

HU 

LT 

LU 

LV 

NL 

PT 

SK 

Total 
without 
FR 

58 606 

58 548 

55 462 

50 204 

45 709 

42 474 

14 187 

16 690 

13 433 

15 668 

17 026  No data 

190 
415 

198 
739 

204 
668 

No data  No data  No data 

61 254 

62 076 

63 123 

63 766 

63 890 

65 437 

1 157 

No data 

387 

295 
000 

813 

532 

331 

328 
073 

1 685 

1 784 

1 673 

1 488 

420 

517 

343 
220 

468 

378 

354 
921 

515 

379 

367 
973 

572 

436 

375 
030 

5 588 

5 843 

6 939 

8 719 

16 433  No data 

1 380 

1 181 

1 084 

1 129 

1 131 

902 

437 
559 

474 
087 

485 
883 

497 
037 

514 
729 

486 
339 

Source: MSCAs survey responses + French Ministry of Justice website 

-6 % 

6 % 

4 % 

1 % 

13% 

3 % 

6 % 

5 % 

34 % 

-8 % 

4 % 

The  figures  available  show  an  overall  increase  in  the  number  of  protective 
measures adopted between 2015 and 202081, except in Austria82 and Slovakia where 
measures have been decreasing. Over the past five years, there has been an average 
increase of 4 % per year in the number of protective measures adopted across the eight 

80 The data for France was obtained online on the French Ministry of Justice website and is only available 
until 2017. In addition, the French MSCA provided data on the number of new measures adopted be-
tween 2015-2017. In 2015, 76,809 new measures were adopted, in 2016, 78,397 new measures were 
adopted and in 2017, 74,593 new measures were adopted. 

81 The increase observed in Portugal coincides with the legislative changes that occurred in 2019, and which 

resulted in a more flexible regime.  

82 The current law (Erwachsenenschutzgesetz) entered into force in 2018 and marked an important change 
in approach towards the protection of adults. While the previous system of guardianship kept increasing 
the number of measures taken, the newly introduced system is a paradigm shift as it provides for more 
autonomy, self-determination and freedom of decision. Some of the underlying goals were to live up to 
the UN Convention on the rights of persons with disabilities as well as to stop the ever increasing num-
ber of measures taken under the old legal regime. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

Member  States  for  which  data  is  available  (Austria,  the  Czech  Republic,  Hungary, 
Lithuania,  Latvia,  the  Netherlands,  Portugal,  Slovakia)  or  a  total  increase  of  18  %  - 
going from 437 559 in 2015 to 514 729 in 2019. For France, no recent data is available 
for 2018-2020; however, the MSCA indicated that between 2000 and 2016 the number 
of new measures adopted increased from 55 000 to over 78 000 (i.e., a 43 % increase). 
Since 2010 the number of new protective measures steadily increased to reach a peak 
of  78  397  in  2016.  At  the  start  of  2017,  around  730  000  people  were  placed  under 
protective supervision. 

Breakdown by type of protective measure 

Table  24  below  compiles  the  data  obtained  from  MSCAs  on  the  number  of  protective 
measures adopted between 2015 and 2020 by type of measure adopted.  

Table 24: Total number of protective measures adopted by type of measure (2015-
2020) 

MS 

AT 

CZ 

Type of measure 

2015  2016  2017  2018  2019  2020 

Guardianships/curatorship 

7 237  7 237  6 527  4 579 

5 405  6 017 

Limitation of legal capacity 

Guardianship without limitation 
of legal capacity 

Representation by a household 
member 

11 
914 

13 
243 

10 
407 

13 
177 

14 
633 

1 641  2 975  2 844  2 279 

2 211 

568 

406 

139 

164 

144 

Assistance in decision-making 

64 

66 

43 

48 

38 

FR 

Guardianship 

Curatorship 

Family-member guardianship 
order 

Custody 

41 
975 

33 
316 

No 
data 

41 
464 

34 
385 

6 000 

1 518  1 485 

HU 

Custody that concerns the 
capacity to act 

56 
515 

57 
039 

37 
544 

36 
154 

17 
000 

895 

57 
983 

No 
data 

No 
data 

No 
data 

No 
data 

58 
242 

No 
data 

No 
data 

No 
data 

No 
data 

58 
153 

Trustee (of the person under 
custody) / Ad-hoc custodian 

Assignment of an ad-hoc 
custodian 

Assignment of a sequestrator 

Supported decision-making 
without prejudice to capacity to 
act 

3 195  3 154  3 144  3 147 

3 325  2 807 

1 308  1 599  1 719  2 010 

2 064  4 986 

145 

91 

135 

149 

110 

167 

161 

206 

153 

195 

111 

207 

LT 

Court decisions 

1 157 

803  1 670  1 769 

1 657  1 468 

Assisted decision making  

LU 

Guardianship 

Curatorship 

3 

336 

169 

5 

224 

167 

6 

283 

169 

PT 

Guardianship and curatorship 

3 538  3 743  4 495  5 949 

7 

330 

161 

13 
531 

6 

378 

166 

No 
data  

Compulsory internment 

1 490  1 440  1 698  1 766 

1 840  1 534 

Total or partial asset 
administration 

280 

330 

373 

502 

531 

No 
data  

Authorisation for a specific 

280 

330 

373 

502 

531 

No 

100 

No 
data 

No 
data 

No 
data 

No 
data 

No 
data 

No 
data 

No 
data 

No 
data 

57 
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Study on the cross-border legal protection of vulnerable adults in the EU 

MS 

Type of measure 

2015  2016  2017  2018  2019  2020 

intervention 

data  

SK 

Deprivation of legal capacity 

1 227 

617 

0 

0 

0 

0 

Restriction of legal capacity 

153 

564  1 084  1 129 

1 131 

902 

Source: MSCAs survey responses 

The different types of protective measures available from one Member State to another 
limit the possibility to draw cross-country comparisons. However, it is visible that across 
six Member States, guardianship/curatorship and measures that limit the legal capacity 
of the vulnerable adults make up the majority of all protective measures adopted across 
all years.  

Only Austria, the Czech Republic and Luxembourg provided data with a breakdown by 
type  of  proxy  for  the  protective  measures.  In  Austria,  the  majority  of  protective 
measures have a notary or lawyer as proxy (35 %), closely followed by family members 
of vulnerable adults (33 %) and public guardians (22 %). In the Czech Republic, family 
members make up 71 % of proxies and public guardians 29 %. In Luxembourg, family 
members make up around 54 % of proxies, guardianship associations 18 %, and private 
parties and care providers make up 3 % of proxies. In Latvia, on average family mem-
bers  make  up  over  70  %  of  proxies.  Although  no  data  were  available  for  2020,  the 
French MSCA indicated that in 2016, nearly 6 out of 10 guardianships were entrusted 
to family members and less than 4 out of 10 to judicial representatives, while the op-
posite was true for curatorship, where three quarters of the measures were entrusted 
to professional guardians. However, the MSCA indicated that overall there has been an 
increasing trend of appointing professional guardians.  

Private mandates 

Similarly, very limited data are available on the number of private mandates registered 
over the past five years, only the Austrian, Dutch, Lithuanian and Latvian MSCAs were 
able to provide figures compiled in Table 25 below.  

Table 25: Total number of private mandates registered (2015-2020) 

MS 

2015 

2016 

2017 

2018 

2019 

2020 

AT 

FR 

LV 

LT 

NL 

No data  No data  No data  No data  150 607  171 077 

909 

1 083 

1 164  No data  No data  No data 

6 

No data 

17 

7 

17 

10 

22 

9 

28 

9 

31 

13 

No data 

65 590 

69 162 

74 298 

79 262 

83 998 

Source: MSCAs survey responses + French Ministry of Justice website 

Average 
annual 
increase 

14 % 

13 % 

50 % 

19 % 

6 % 

In Austria, Latvia, and the Netherlands, the number of private mandates has seen 
a significant increase in  recent years. In Austria between 2019 and 2020 private 
mandates increased by 14 %, while they increased on average by 6 % per year in the 
Netherlands between 2016 and 2020, by 19 % per year in Lithuania between 2016 and 
2020, and by 50 % per year between 2015 and 2020 in Latvia. The data for France were 
obtained on the French Ministry of Justice’s website and figures are only available until 
2017. In France, the number of private mandates also increased (on average by 13 % 
annually) over a period of three years.  

Foreign protective measures 

Only the Czech,  Luxembourgish and Portuguese MSCAs were able to  provide data  on 
foreign protective measures between 2015 and 2020. All other MSCAs that responded 
to the survey indicated that data on foreign measures are not recorded. However, 

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Study on the cross-border legal protection of vulnerable adults in the EU 

the  German  competent  authority  and  the  competent  authority  from  another  Member 
State not party to the HCCH Convention indicated that such cases are rare. The Estonian 
and Latvian MSCAs reported that, as far as they are aware, there were no cases in which 
the HCCH Convention was applied, while the Austrian and Cypriot MSCAs reported only 
one case where the Convention was applied. In addition, during an interview, the Finnish 
MSCA indicated that they can only recall two cases in which the Convention was applied. 
The data provided by Portugal and the Czech Republic are compiled in Table 26 below. 
It should be noted that the data for Portugal refers to the number of cases reported by 
courts to the Portuguese MSCA. The later indicated that these figures are an approxi-
mation and that it is possible that more cases occurred but were either not detected by 
the IT  software  or not  reported to the Central Authority.  The  Czech  MSCA  could only 
provide data on the number of requests coming from other Member States party to the 
2000 Hague Convention and in which the central authority was involved. 

Table 26: Number of foreign protective measures in Portugal (2015-2020) 

MS  Type of decision 

2015  2016  2017  2018  2019  2020  Average 

annual 
increase 

PT  Number of cases for which 

5 

8 

11 

17 

22 

26 

40 % 

recognition and/or 
enforcement of foreign 
protective measures was 
requested in your country 

Number of foreign 
protective measures for 
which recognition and/or 
enforcement has been 
refused in your country 

Number of foreign 
protective measures which 
have be recognised in 
your country 

1 

1 

1 

0 

1 

0 

4 

7 

10 

15 

16 

27 

49 % 

CZ  Number of cases for which 

1 

3 

2 

5 

4 

9 

84 % 

recognition and/or 
enforcement of foreign 
protective measures was 
requested in your country 

LU  Number of cases for which 

recognition and/or 
enforcement of foreign 
protective measures was 
requested in your country 

Number 
foreign 
of 
protective  measures  which 
have be recognised in your 
country 

Number  of 
confirmation 
cases  of  private  mandate 
with 
international 
element in your country 

an 

of 

Number 
certificates 
issued  on  the  basis  of  Art. 
38  of  the  2000  Hague 
Convention 
the 
international  protection  of 
adults  

on 

1 

1 

1 

1 

1 

0 

0 

0 

0 

0 

0 

- 

- 

- 

- 

Source: Portuguese Central Authority, Czech Central Authority, Luxembourgish Central Authority 

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The number of cases with cross-border implications in Portugal was relatively 
low between 2015 and 2020 – with a total of 89 requests for recognition and/or en-
forcement of foreign protective measures over the 5-year period. However, this num-
ber has been steadily increasing, on average by 40 % per year, representing a five-
fold  increase  overall.  Similarly,  the  number  of  foreign  protective  measures  that  were 
recognised in Portugal between 2015 and 2020 is low – with a total of 79 cases over the 
5-year  period.  The  recognition  of  foreign  protective  measures  has  also  been  steadily 
increasing, on average by 49 % per year.  

The Portuguese MSCA indicated that most of the cases refer to decisions taken in 
other countries regarding Portuguese citizens, where the vulnerable adult had as-
sets in Portugal or moved their habitual residence to Portugal. Only about five decisions 
were  reported  to  be  taken  in  Portugal  regarding  citizens  of  contracting  States  to  the 
Hague Convention. In relation to decisions on recognition and enforceability decreed in 
Portugal,  in  55  cases  the  vulnerable  adults  had  Portuguese  nationality,  in  six  cases 
French nationality, in one case German, Belgian and Luxembourgish nationality and in 
14 cases the vulnerable adults had a non-EU nationality (Angola, Brazil, Cuba, Switzer-
land and USA). As far as the Central Authority is aware, there were no confirmations of 
private mandates and no certificates issued on the basis of Article 38 of the 2000 Hague 
Convention.  

Similarly, the number of requests for recognition received by the Czech MSCA was low 
over  the  5-year  period  –  with  a  total  of  24  requests.  However,  this  number  has  also 
been increasing, on average by 84 % per year. The majority of requests (16) came from 
Germany, followed by Switzerland (three), France (two), Austria (one), the Netherlands 
(one) and Portugal (one).  

In Luxembourg, the number of requests for recognition and recognition of foreign pro-
tective measures was also low between 2015 and 2020 with only one request for recog-
nition in 2017 and 2019. Only one foreign protective measure was recognised in Lux-
embourg  in  2017  and  2020.  In  addition,  the  Luxembourgish  MSCA  indicated  that  no 
certificates were issued on the basis of Article 38 of the Hague Convention during the 
5-year period. In Luxembourg, one decision on recognition and enforceability pertained 
to a vulnerable adult from Greece and one from Portugal.  

3.1.2  Stakeholder perceptions on the number of protective measures 

To mitigate for the limited quantitative data, stakeholders were asked about their per-
ception on overall trends in the number of protective measures and cases with cross-
border implications. Although the  results are anecdotal, they nonetheless help give a 
broad picture of the situation and confirm the trends identified in the quantitative data 
provided by some of the Member States.  

The results of the surveys show that the majority of MSCAs and legal practitioners (57 
%) have perceived an increase in the number of protective measures of the past 
five  years,  while  81  %  of  the  non-technical  survey  respondents  have  perceived  an 
overall  increase  in  the  number  of  vulnerable  adults  in  need  of  protective 
measures over the past five years.  

Figure 5: Have you perceived changes in the overall number of protective measures 
taken for vulnerable adults over the past 5 years? (legal practitioners and MSCAs 
surveys, N=63) / In your line of work, have you perceived changes in the number of 

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Study on the cross-border legal protection of vulnerable adults in the EU 

vulnerable adults in need of protective measures (e.g., guardianship) over the past 5 
years? (non-technical survey, N=16) 

When asked about trends in the number of  cases with cross-border implications, 
47 % of legal practitioners and MSCAs stated that the number of cross-border 
cases had increased over the past five years and 20 % stated that the number of 
cross-border cases has remained more or less the same. However, 33 % were unable 
to respond. On an individual level, 33 % of legal practitioners stated that the number 
of cases with cross-border implications which they have worked on has increased over 
the past five years, 23 %  stated that the number of cases they have  worked  on has 
remained  more  or  less  the  same  and  only  2  %  stated  that  the  number  of  cases  has 
decreased. The number of cross-border cases on which the surveyed legal practitioners 
have worked on over the past five years ranges from 0 to 600, with an average of 63 
cases – i.e., around 13 cross-border cases per year. At the same time, 67 % of the non-
technical survey respondents that were able to provide an answer, stated that in their 
line  of  work  they  have  perceived  an  increase  in  the  cross-border  mobility  of 
vulnerable adults over the past five years.  

Figure 6: In your opinion, how has the number of cases with cross-border implications 
with EU Member States related to the protection of vulnerable adults evolved over the 
past 5 years in your country? (legal practitioners and MSCA surveys, N=60) 

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Average length of cases with cross-border implications 

More  than  half  of  the  MSCAs  and  legal  practitioner  respondents  (55  %)  stated  that 
cases  with  cross-border  implications  are  on  average  longer  than  similar  na-
tional cases, with 16 % stating that they are significantly longer. On the other hand, 
27 % were unable to respond; 11 % stated that cases with cross-border implications 
are on average the same length as national cases; and 7 % stated that they are signif-
icantly shorter. The MSCA from Luxembourg indicated that the average length of pro-
ceedings for recognising foreign decisions made by the competent authorities of another 
Member State is 6 to 12 months, while the Lithuanian MSCA indicated an average of 7 
months  and  the  Latvian  MSCA  indicated  1  to  2  months.  No  other  MSCA  was  able  to 
provide information on the average length of proceedings, as statistical information on 
cross-border cases is not recorded. Several respondents (18) provided explanations to 
support their answers.  

The majority (12) mentioned that processing cases with cross-border implications takes 
longer than processing purely domestic cases with similar characteristics due to diffi-
culties in obtaining information from all parties involved and difficulties in co-
operating with foreign  institutions.  The  need  for  translation  and  interpreters  was 
highlighted by two respondents; one respondent stated that adequate systems for co-
operation and training of staff are lacking; and one respondent mentions problems in 
obtaining a response from the other State. An additional six respondents, stated that 
cross-border cases are longer than national cases due to differences in jurisdictions 
which add a layer of complexity. One respondent mentioned difficulties in obtaining the 
recognition of decisions appointing representatives abroad; one mentioned the need to 
obtain permission from a judge for certain procedures in some Member States which is 
not  the  case  in  their  Member  State;  one  stated  that  the  limited  number  of  countries 
party to the Hague Convention leads to complexity; and one respondent mentioned that 
proceedings  were  longer  because  judges  need  to  familiarise  themselves  with  the  na-
tional  law  of  the  other  country.  The  French  MSCA  indicated  that  the  same  process  is 
used for national cases and cases with cross-border implications, therefore, the length 
of the proceedings vary in the same way depending on the workload of the courts and 
medical experts and not due to the cross-border nature of a case.  

Key findings:  

•  Limited data is available on the number of protective measures adopted in the 
Member  States  between  2015  and  2020  and  the  majority  of  MSCAs  indicated 
that they do not record information on cases with a cross-border element.  
•  Based on the limited data available and on the overall perception of stakeholders, 
there appears to have been an increase in the number of protective measures 
adopted between 2015 and 2020 – with an overall increase of 18 % across eight 
Member States. At the same time, NGOs and medical/social care organisations 
have  perceived  an  increase  in  the  number  of  persons  in  need  of  protective 
measures and an increase in their cross-border mobility.  

•  Similarly, based on the limited data available, the number of private mandates 

appears to have been steadily increasing over recent years.  

•  Only  Luxembourg  and  Portugal  provided  data  on  cases  of  recognition  and  en-
forcement  of  foreign  protective  measures.  In  Luxembourg  the  number  of  re-
quests for recognition and the number of foreign protective measures recognised 
has  been  low  with  less  than  one  case  per  year  over  the  5-year  period  (2015-
2020). The number of cases in Portugal over the five-year period is also relatively 
low  (with  a  total  of  89  requests  between  2015-2020).  However,  Portugal  has 
seen a five-fold increase in the number of requests for recognition, going from 
five requests in 2015 to 26 in 2020. Many legal practitioners have also perceived 
an increase in the number of cases with cross-border implications in their line of 
work. The Czech Republic provided data on the number of requests received by 
other Member States party to the 2000 Hague Convention. The number of re-
quests in the Czech Republic has also been low (24 in total over five years) but 

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Study on the cross-border legal protection of vulnerable adults in the EU 

increasing on average by 84 % per year. In addition, several other MSCAs indi-
cated that the number of cross-border cases has been very rare in recent years. 
•  The majority of MSCAs and legal practitioners indicated that the average length 
of cases with cross-border implications is longer than similar national cases, cit-
ing difficulties in obtaining information from all parties involved and differences 
in jurisdictions as key reasons behind the complexity of such cases. Two MSCAs 
provided information on the average length of cross-border proceedings which 
range between 1 and 12 months.  

3.2  Overview of case-law on cross-border cases in the Member States  

Case-law  was  identified  for  eight  Member  States  (Austria,  Belgium,  Estonia,  France, 
Italy, the Netherlands and Poland - see Annex IV). Most of the jurisprudence consists 
of cases handled by lower and middle courts. Nevertheless, important decisions of the 
higher  courts  are  included,  such  as  the  decision  of  the  Dutch  Supreme  Court,  which 
made the rules of the Hague Convention applicable in the Netherlands. 

3.3  Legal and practical challenges in cross-border cases 

The three different surveys (MSCAs, legal practitioners and non-technical) contained a 
section  addressed  to  respondents  from  all  countries  about  the  legal  and  practical 
challenges  that  occur  in  cross-border  cases.  The  present  section  presents  the  results 
obtained from the stakeholders.  

3.3.1  Main challenges faced by vulnerable adults and their representatives in the 

context of cross-border cases 

Challenges 

MSCAs  and  non-technical  survey  respondents  were  asked  about  the  main  challenges 
experienced by vulnerable adults or their representatives in the content of cross-border 
cases. Out of all respondents who provided an answer (25), more than half mentioned 
language  barriers  as  a  key  challenge  (64  %),  followed  by  uncertainty  regarding 
the validity of legal documents (55 %). Other key challenges observed by MSCAs 
and non-technical survey respondents included costly proceedings, difficulties in enter-
ing in transactions with third parties (e.g., banks) (52 %), difficulties in identifying the 
competent legal professionals to address in the other country (48%) and lengthy legal 
proceedings (44 % of respondents).  

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Figure 7: In your experience, what are the main challenges faced by vulnerable adults 
and their representatives in cross-border situations? (MSCA survey and non-technical 
survey, N=25) 

Other includes, lack of “easy to read” documents, written in plain accessible language and differing definitions 
of “disability” which can lead to varying levels of support from one Member State to another.  

Several stakeholders provided comments in a follow-up question to substantiate their 
answer. In relation to language barriers, two MSCAs mentioned that these are particu-
larly  problematic  when  a  public  guardian  is  appointed  in  another  Member  State  who 
often does not speak the language of the vulnerable adult. One NGO active in the pro-
tection of vulnerable adults stated that language barriers exacerbate issues over finan-
cial decisions and ownership when dealing with third parties such as banks, which al-
ready  often  have  limited  understanding  of  vulnerable  persons  and  rules  surrounding 
protective measures. According to this NGO it  thus becomes more difficult to respect 
the  wishes  of  the  individual  under  protection  in  cross-border  situations  due  to  more 
complex arrangements and significant differences in law from one country to another. 
One organisation providing social care to vulnerable adults stated that the international 
element prolongs procedures, leading to higher costs and distress to vulnerable adults 
and their representatives.  

Legal  uncertainty  and  difficulties  in  legal  procedures  were  mentioned  by  six 
non-technical respondents as a key barrier to the free movement of vulnerable 
persons. These organisations state that the variation in rights of vulnerable adults be-
tween countries (including in relation to private international law) creates uncertainty 
on how the legal rights and wishes of people under protection will be respected and act 
as a deterrent for travelling abroad. This also extends to the family of the vulnerable 
adult  taking  up  residence  abroad,  who  often  move  their  vulnerable  relative  to  their 
country of residence to ensure they are able to provide care. According to several NGOs, 
vulnerable adults and their representatives often face difficulties in identifying 
the country which has responsibility or jurisdiction over specific matters, such 
as, determining the law applicable to the protection of the adult; determining whether 
a non-voluntary measure or private mandate granted in one state will be given effect in 

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Study on the cross-border legal protection of vulnerable adults in the EU 

another; and determining whether and how the authorities of one state can be called 
upon to assist the authorities of another state in providing the protection that the adult 
may need. The need to have an additional legal representative nominated by a judge in 
the county to which the vulnerable adult is moving was also stated as a difficulty by one 
non-technical survey respondent.  

Overall, respondents from Member States that have not ratified the 2000 Hague Con-
vention indicated more difficulties than those from Member States that have ratified the 
Convention,  with  the  former  reporting  on  average  five  difficulties  and  the  later  three 
difficulties out of the 12 possible options. A higher proportion of respondents from Mem-
ber States that have not ratified the Convention indicated costly proceedings; difficulties 
in identifying the right contact point in the other Member State; duplication of proce-
dures and uncertainty over the validity of legal documents, than respondents from Mem-
ber States that have ratified the Convention (see Figure 8 below). 

Figure 8: In your experience, what are the main challenges faced by vulnerable adults 
and their representatives in cross-border situations? Breakdown by type of Member 
State (MSCA survey and non-technical survey, N=22) 

How to interpret the graph: this figure shows that 50 % of respondents from Member States that have not 
ratified the 2000 Hague Convention reported costly proceedings as a key challenge, versus 27 % of respond-
ents from Member States that have ratified the Convention. 

Repercussions of the non-recognition of protective measures abroad or of 
lengthy/complex proceedings 

All stakeholder types (MSCAs, legal practitioners and non-technical respondents) were 
asked about the repercussions of the non-recognition of foreign protective measures or 
of lengthy/complex proceedings for vulnerable adults and their family.  

The majority of respondents (20) stated that vulnerable adults incur financial losses 
and are unable to manage their financial affairs as they would wish (e.g., sell or 
transfer assets) or experience significant delays when foreign protective measures are 
not recognised or take time to be recognised. Thirteen of these respondents were legal 

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practitioners, three were organisations active in the protection of vulnerable adults and 
four were MSCAs. One respondent highlighted that in these cases vulnerable adults face 
higher risks of litigation, while another respondent stated that it can also lead to diffi-
culties in receiving maintenance allowances from relatives abroad.  

Delays in obtaining medical care or receiving inadequate medical care was the 
second  most  mentioned  repercussion  by  stakeholders  (four–  legal  practitioners,  one 
MSCA, and one NGO). One stakeholder gave the example of the COVID-19 vaccination, 
where some vulnerable adults abroad experienced delays or were unable to receive the 
vaccination  due  to  issues  with  the  recognition  of  protective  measures  –  in  this  case 
linked to the authorisation of their proxy for vaccination. A legal practitioner also men-
tioned  that  vulnerable  adults  can  be  prevented  from  receiving  treatment  due  to  the 
inability to get the assets needed to face medical expenses.  

Three organisations active in the protection of vulnerable adults mentioned the viola-
tion  of  rights  of  the  persons  under  protection  and  possible  restrictions  on  their 
exercise of legal capacity (notably in the case of persons with a disability). These or-
ganisations  argue  that  cross-border  cases  increase  the  risk  of  non-respect  of  the 
wishes/preferences of vulnerable adults.  

Costs of proceedings and need for legal aid 

The non-technical survey and the survey to legal practitioners included several ques-
tions on the  costs of cross-border proceedings and notably on the need for legal aid. 
When asked how often vulnerable adults need legal aid to meet the costs of court cases 
/ legal representation abroad, the majority of respondents were unable to respond. Out 
of those who could provide an answer (24), 46 % responded that vulnerable adults very 
often need legal aid, while 29 % responded that they sometimes need legal aid. 17 % 
of respondents answered that vulnerable adults always need legal aid, 4 % answered 
that vulnerable adults never need legal aid and 4 % said that they rarely need legal aid.  

On the question of whether legal aid is sufficient to cover all of the costs linked to court 
cases/legal representation in cross-border situations, 55 % of respondents (out of 33 in 
total) believe that legal aid is not sufficient, while 45 % believe it is sufficient.  

Twelve respondents further explained that legal aid usually only covers court expenses 
and  lawyer  fees,  it  does  not  cover  the  costs  of  translating  or  certifying  docu-
ments nor travel and accommodation costs linked to certain interventions. Five of 
these respondents also highlight the difficulties for vulnerable adults to obtain le-
gal aid in the first place, which is exacerbated in cross-border cases. One NGO ex-
plained that support and advice is offered in the first instance by civil society organisa-
tions, which then signal the persons towards national legal services and explain proce-
dures for obtaining aid. Difficulties in obtaining legal aid act as an additional barrier to 
free movement and access to justice of vulnerable adults, all the more as persons with 
disabilities  often  already  face  extra  costs  for  accessing  the  justice  system  in  general 
linked to the need for a personal assistant or support person.  

3.3.2  Main challenges faced by legal practitioners in the context of cross-border 

cases 

Legal practitioners were asked about the main challenges they encounter in obtaining 
the recognition and/or enforcement of foreign protective measures. Out of all respond-
ents that provided an answer (34), the main challenge stated is the  difficulty in ac-
cessing/understanding information from the other country (79 %), followed by 
difficulties in entering into transactions with third parties (71 %). More than half 
of the respondents also stated that they encounter lengthy proceedings (62 %), diffi-
culties in identifying the correct point of contact in the other country (53 %) and uncer-
tainty over the validity of legal documents (53 %).  

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Figure 9: What are the main practical challenges you encounter as a practitioner in 
obtaining the recognition and /or enforcement of foreign protective measures? 
(N=34) 

Other includes lack of judicial training; UNCRPD requirements and understanding of measures of protection 
and powers of representation. 

No statistically significant differences by  country of practice  of the respondents or by 
type  of  practitioners  could  be  identified.  Respondents  from  Member  States  that  have 
ratified the 2000 Hague Convention and from those that have not ratified the Convention 
highlighted similar types of challenges and both indicated on average five difficulties out 
of the 10 options.  

In a follow-up question, several stakeholders provided anecdotal examples of difficulties 
which they faced in specific cases. One respondent from the Netherlands explained that 
certain documents are not recognised nor accepted in other countries. For ex-
ample, a procuration that the Dutch practitioner had drafted so that a medical assess-
ment in France would not be necessary was rejected by the French authorities. Another 
respondent highlighted that even in cases of emergency (e.g., hospitalisation without 
consent) it is impossible to access and check information from other countries 
and identify the relevant professionals to contact. Two Italian notaries mentioned cases 
where the vulnerable adult abroad faced very long delays due to the legal uncertainty 
of their situation and difficulties for authorities to communicate among themselves. A 
Slovenian notary gave the example of the family of an elderly Slovenian residing in a 
Croatian retirement home who abandoned plans to rent the real estate of their elderly 
relative due to the complexity of the procedure.  

3.3.3  Main challenges faced by competent ministries and central authorities in the 

context of cross-border cases 

Member States’ competent ministries and central authorities (hereinafter MSCAs) were 
asked  about  the  main  challenges  they  face  as  competent  authorities  in  cross-border 
cases. Similar to legal practitioners, out of all  respondents (ten), the majority mention 
difficulties in accessing/understanding information from the other country (80 
%). Other challenges such as difficulties in identifying the correct point of contact / legal 
professionals in the other country, and language barriers were mentioned by half of the 

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Study on the cross-border legal protection of vulnerable adults in the EU 

respondents, while uncertainty regarding the validity of legal documents was mentioned 
by less than half of the respondents (30 %).  

Figure 10: What are the main challenges that you, as a competent authority, face in 
your country in cross-border cases? (N=10) 

Other includes the absence of adoption of implementation rules, in particular on recognition and enforceability 
and the fact that a very limited number of countries have ratified the Hague Convention 

The Czech MSCA argued that promoting e-mail communication between the central au-
thorities would facilitate communication between the Contracting States of the Hague 
Convention, which would speed up procedures and reduce postal delays. The MSCA from 
a state that is not party to the Hague Convention83 mentioned that difficulties occur as 
it is often necessary to gather information on foreign laws. This is due to their domestic 
Private International Law rules, which state that the national law of the vulnerable adults 
applies to their protection. On the other hand, the Austrian MSCA stated that the diffi-
culties  mentioned  result  from  cross-border  situations  in  general  and  do  not  reflect  a 
need to amend the law on the protection of adults, while the Dutch MSCA stated that 
they have not faced obstacles regarding the recognition and enforcement of protective 
measures, notably because courts apply the 2000 Hague Convention in anticipation of 
its  ratification.  The  French  MSCA  indicated  that  the  limited  number  of  countries  that 
have ratified the Hague Convention leads to numerous situations that are not covered 
by any international instrument, which in turn leads to complexity, the absence of con-
tact points and difficulties in accessing necessary information.  

Overall, MSCAs from Member States that have ratified the 2000 Hague Convention and 
from those that have not ratified the Convention highlighted similar types of challenges. 
A higher proportion of MSCAs from Member States that have not ratified the Convention, 
however,  indicated  difficulties  in  identifying  the  correct  point  of  contact/legal  profes-
sionals in the other country as a challenge, compared to MSCAs from Member States 
that have ratified the Convention (75 % (3/4) versus 33 % (2/6). Similarly, MSCAs from 
Member  States  that  have  not  ratified  the  Convention  indicated  uncertainty  regarding 
the validity of legal documents as a challenge, compared to MSCAs from Member States 
that have ratified the Convention (50 % (2/4) versus 17 % (1/6)). 

83 The responding authorities requested anonymity.  

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3.3.4  Breaches of the fundamental rights of persons with intellectual disabilities 

linked to the UNCRPD occurring in cross-border cases 

All stakeholder types (MSCAs, legal practitioners and non-technical respondents) were 
also  asked  whether  they  are  aware  of  breaches  of  the  fundamental  rights  of  persons 
with intellectual disabilities linked to the UNCRPD occurring in cross-border cases. Out 
of  all  respondents  (36),  more  than  half  (58 %)  stated  that  breaches  had  occurred  in 
relation to the person’s autonomy and right to make their own choice. It should be 
noted that only legal practitioners and non-technical survey respondents mentioned this 
type of breach, except for the Latvian MSCA. The majority of MSCAs did not mention 
any breaches.  

Figure 11: Are you aware of breaches of the fundamental rights of persons with 
intellectual disabilities, linked to the UNCRPD, that would have occurred in cross-
border cases, in particular:  
(All surveys, N=36) 

Other includes, inability to certify that the adult has been heard for in some cross-border cases; no breaches; 
and right to employment, voting and education. 

In a follow-up question, several notaries/notary bodies mentioned that not all Member 
States  have  set  up  extra-judicial  mechanisms  and  solutions  provided  by  non-
judicial public authorities or public office holders (such as notaries) to appoint a repre-
sentative  or  provide  other  supporting  measures  in  the  case  of  loss  of  capacity  of  an 
adult. 

A pan-European NGO active in the protection of vulnerable adults argued that in cross-
border situations, issues of competing jurisdiction and lack of mutual recognition of pro-
tective measures often result in the wishes of the person not being considered or 
given  effect,  particularly  when  the  vulnerable  person  is  not  involved/represented  in 
the decisions which affect them. This can also be supported by the response provided 
by an MSCA which states that in some cross-border cases it is not always possible to 
certify  that  the  vulnerable  adult  has  been  heard.  In  the  same  vein,  two  other  NGOs 
argue that persons with disabilities often face issues in accessing justice and extra 
costs,  which  are  exacerbated  in  cross-border  situations,  hindering  their  right  to  free 
movement.  

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In relation to health, an NGO stated that due to the delays experienced in cross-border 
cases,  it  is  difficult  to  arrange  health  insurance  and  financial  help,  leading  to 
situations where no care can be provided as there is no guarantee for the care-provider 
that costs will be covered.  

Finally,  another  pan-European  NGO  argued  that  the  recognition  of  guardianship  and 
curatorship in cross border healthcare constitutes a violation of Article 12 of the UNCRPD 
and that it is against the right to legal capacity and autonomy of the person. Further-
more, this NGO argued that in some cases, the Hague Convention and recognition of 
substituted decision making could be used for practices not compliant with the UNCRPD 
such as moving a person from one institution to another. 

Key findings:  

•  Language barriers and uncertainty regarding the validity of legal documents were 
cited as key challenges faced by vulnerable adults and their representatives in 
cross-border situations. Legal uncertainty and varying rights from one Member 
State to another were mentioned as key barriers to the cross-border mobility of 
vulnerable persons by NGOs active in the field of protection of vulnerable adults. 
According to stakeholders, vulnerable adults and their families often face diffi-
culties in identifying which country has jurisdiction over specific matters in cross-
border situations. Overall, respondents from Member States that have not rati-
fied the 2000 Hague Convention indicated more difficulties than those from Mem-
ber States that have ratified the Convention. 

•  Lengthy  legal  proceedings  and  the  non-recognition  of  foreign  protective 
measures have adverse repercussions on and cause distress to vulnerable adults 
and their families. The majority of stakeholders stated that in such cases, vul-
nerable adults often face financial losses and the inability to manage their finan-
cial affairs, along with delays in receiving adequate medical care and breaches 
to their fundamental rights through the non-respect of their wishes/preferences. 
•  More than half of all survey respondents (58 %) stated that they are aware of 
breaches of the fundamental rights of persons with intellectual disabilities linked 
to  the  UNCRPD  occurring  in  cross-border  situations,  particularly  in  relation  to 
autonomy and the right to make one’s own choice.  

•  Half  of  the  non-technical  survey  respondents  and  legal  practitioners  indicated 
that vulnerable adults often or always need legal aid to meet the costs of court 
cases/legal representation abroad, while more than half believe that legal aid is 
not sufficient to cover all costs. Legal aid notably does not cover costs of trans-
lation, certification of documents or travel and accommodation costs.  

•  Over 70 % of legal practitioner respondents indicated that they face difficulties 
in understanding/accessing information in other countries and difficulties in en-
tering into transactions with third parties in the context of cross-border cases. 
More than half also experienced lengthy proceedings, legal uncertainty and dif-
ficulties identifying the correct contact point in the other country. Respondents 
from  Member  States  that  have  ratified  the  2000  Hague  Convention  and  from 
those that have not ratified the convention highlighted similar types of challenges 
– with no statistically significant differences among both groups.  

•  MSCAs appear to face fewer challenges. The main challenge reported is the dif-
ficulty  in  understanding/accessing  information  in  other  countries  (80  %  of  re-
spondents).  A  higher  proportion  of  MSCAs  from  Member  States  that  have  not 
ratified the Hague Convention reported difficulties in identifying the correct con-
tact  point  in  the  other  country  and  uncertainty  regarding  the  validity  of  legal 
documents compared to MSCAs from Member States that have ratified the Con-
vention.  

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3.4  Legal and practical challenges related to the Functioning of the 2000 

Hague Convention  

The  surveys addressed  to both MSCAs and legal practitioners  contained questions on 
the  practical  application  and  challenges  linked  to  the  application  of  the  2000  Hague 
Convention for respondents from Member States party to the 2000 Hague Convention. 
Overall, seven MSCAs (Austria, Belgium, the Czech Republic, France, Germany, Latvia, 
Portugal) party to the Convention and 18 legal practitioners (on average per question) 
provided answers to these questions.  

Awareness of the 2000 Hague Convention 

MSCAs  were  asked  whether  they  consider  that  the  relevant  legal  practitioners  are 
sufficiently aware of the application of the Hague Convention in their Member State. The 
majority  (five)  consider  that  legal  practitioners  are  not  sufficiently  aware  of  the 
Convention,  while  two  believe  they  are.  The  Czech  MSCA  stated  that  further  action 
should be taken to promote greater awareness of the Hague Convention among legal 
practitioners  and  that  more  training  is  required.  Two  others  (Germany  and  Latvia) 
highlighted  the  very  limited  number  of  cases  where  the  Convention  is  applied,  which 
results in a weak base of experience among practitioners, although they are aware of 
the  Convention.  The  French  MSCA  indicated  that  while  judges  have  improved  their 
knowledge of the application of the Hague Convention, awareness among lawyers and 
notaries remains low. 

Challenges in applying the general and specific provisions on jurisdiction (Ar-
ticles 5-12 of the 2000 Hague Convention) 

The  majority  of  MSCAs  that  responded  to  the  survey  (five  out  of  seven)  stated  that 
they are not aware of any practical issues or challenges  in applying the general 
provisions on jurisdiction of the Hague Convention. Only the Czech and German com-
petent authorities stated that they are aware of challenges.  

Both the Czech and German competent authorities, along with two legal practitioners, 
mentioned uncertainties over the notion of “habitual residence”, especially when there 
are  indications  that  the  vulnerable  adult  has  been  taken  abroad  without  consent  / 
against their will or in cases when the residence abroad lasts less than one year. The 
Czech competent authority indicated that this results in decisions over whether to ex-
ercise  jurisdiction  under  Article  5  of  the  Convention  being  taken  on  a  case-by-case 
basis. In Germany, when the habitual residence of a vulnerable adult changes, the pro-
cedure remains pending in Germany until a new one is introduced in the host country. 
The  German  competent  authority  also  indicated  that,  in  practice,  the  "transmission", 
including with contracting parties, does not work properly, as after a certain point, the 
person concerned can no longer be reached by the German authorities.  

In the same vein, both the Czech and German competent authorities also stated that 
they  are  aware  of  practical  challenges  and  issues  applying  the  specific  provisions  on 
jurisdiction of the Convention, while the other four MSCAs are not. Both the Czech and 
German authorities indicated that in practice it is difficult for the competent authority to 
have  knowledge  about  any  measures  already  taken  by  competent  authorities  under 
Articles 5 to 8 of the Convention. According to the German MSCA, this brings the 
question  of  how  the  conflict  about  parallel  measures  taken  by  competent  authorities 
under Articles 5 to 8 and those under Article 9 of the Convention (not having knowledge 
of other measures) can be resolved. Both the Czech and German authorities also indi-
cated that Article 9 of the Convention is too broad and does not contain enough details 
which can also lead to difficulties. In addition, the Czech authority highlighted the lack 
of mutual information duty. During an interview, the Belgian MSCA reported that nothing 
in  the  Convention  is  provided  for  regarding  transfer  mechanisms  when  the  principal 

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residence is modified84 and nothing is provided for in relation to the forum in relation to 
Articles  8  and  9  of  the  Convention.  The  Belgian  MSCA  pointed  out  that  the  ongoing 
protective measures in Belgium may continue even when a person has moved abroad, 
which means that the protected person will continue to pay an administrator who is in 
practice not in function.  

None of the legal practitioners reported issues directly linked to applying the specific 
provisions on jurisdiction of the Convention. One French judge mentioned difficulties in 
relation  to  Article  443§2  of  the  French  Civil  Code  and  the  Hague  Convention:  while 
French law states that if the vulnerable adult lives outside France, the judge can end 
the protection, he argued that there is no provision in the Hague Convention that clearly 
states that the national judge can divest the judicial file of a vulnerable adult to another 
European judge85. According to the respondent, mutual recognition is not enough, as it 
is  necessary  for  judges  in  other  Member  States  to  be  aware  of  all  relevant  decisions 
taken in relation to the vulnerable adult through the transfer of judicial files. 

Challenges in applying the provisions on applicable law (Articles 13-21 of the 
2000 Hague Convention) 

The vast majority of MSCAs that responded to the survey (six out of seven) are  not 
aware of any practical issues or challenges in applying the provisions on applicable 
law  of  the  Convention.  The  Portuguese  competent  authority,  however,  indicated  that 
some decisions still apply the domestic rules of private international law of the vulner-
able adult’s nationality instead of the rules provided for in the Convention. When asked 
whether  they  have  experienced  issues  resulting  from  the  application  of  Article  13  of 
Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual ob-
ligations (Rome I), four MSCAs (Austria, France, Germany and Portugal) responded that 
they  did  not  experience  issues,  Latvia  indicated  that  the  national  regulations  do  not 
provide for the automatic (ex lege) application of protection measures or the limitation 
of legal capacity, while two other MSCAs (Belgium and the Czech Republic) responded 
that they did not know.  

Furthermore, several legal practitioners indicated that they have faced challenges ap-
plying the provisions on applicable law. An  Austrian notary indicated that the Hague 
Convention is not directly applicable in Austria and that the Austrian PIL provides that 
the law of the nationality of the adult is applicable. However, the respondent stated that 
the Austrian government has recently submitted a proposal to redraft the relevant pro-
vision (§ 15 IPRG) of the national PIL so that the law of the habitual residence at the 
time of establishment of the representation of a person would be applicable. According 
to the respondent, this would bring more clarity and could even serve as an example 
for future EU legislation. A Finnish practitioner highlighted several uncertainties in re-
lation to the Finnish law and Articles 14 and  15 of the  Convention. In cases where  a 
vulnerable adult resides in another Contracting Party, according to the Finnish law, the 
guardian appointed to represent them in their country of habitual residence needs au-
thorisation from Finnish authorities to enter into transactions in Finland. However, the 

84 On that point, it should be mentioned that Article 5(2) of the Hague Convention provides the rules regard-
ing the change of residence. Articles 8 and 12 define competence in case of change of residence, and 
Articles 30, 32 and 34 ensures cooperation and the transmission of information in case of change of resi-
dence.   

85 On that point, it should be noted that Article 12 of the Hague Convention does provide that ‘the measures 
taken in application of Articles 5 to 9 remain in force according to their terms, even if a change of cir-
cumstances has eliminated the basis upon which jurisdiction was founded, so long as the authorities 
which have jurisdiction under the Convention have not modified, replaced or terminated such measures’; 
in the situation mentioned here, the authorities would have terminated the measure. On the other hand, 
Chapter V of the Convention provides for cooperation between authorities, and Article 34 ensures that 
‘In any case where the adult is exposed to a serious danger, the competent authorities of the Contract-
ing State where measures for the protection of the adult have been taken or are under consideration, if 
they are informed that the adult's residence has changed to, or that the adult is present in, another 
State, shall inform the authorities of that other State about the danger involved and the measures taken 
or under consideration’.  

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practitioner believes that paragraph 94 of Lagarde´s Explanatory Report86 suggests that 
transactions can also be subject to authorisation by the authorities of the state of ha-
bitual residence. The  respondent argues that this can  create the need for double au-
thorisation which can be cumbersome for the guardian. In addition, the Finnish practi-
tioner highlighted uncertainties concerning conflict of interests and making a gift/dona-
tion of the adult’s property – notably regarding whether these issues are governed by 
the law of the state where the guardian was appointed or whether this can be considered 
a "condition of implementation". A Belgian notary indicated that there were uncertain-
ties regarding the relationship between Articles 14, 15(1) and 15(3).  The practitioner 
stated that when a measure is taken in one state, with a choice of law for that state, 
but that it needs to be exercised in another state, there is some unclarity as to which 
law applies. In the example faced by the practitioner, the law of the first state did not 
require prior judicial consent for a certain transaction, but the law of the second state 
where the mandate was executed provided for prior judicial consent for the particular 
transaction. However, the chosen law was that of the first state. The practitioner argued 
that the difference between 'extent of the mandate' and the manner in which it is exer-
cised and the manner in which a measure is implemented, was not very clear, and that 
a clarification on the content of these concepts would be welcome. In addition, during 
an interview, the Portuguese MSCA stated that the number of requests it receives from 
Courts to provide them with the rules of foreign legislation indicates that there is still 
confusion on which law to apply, although as a rule the applicable law should be the law 
of the country of residence – i.e. Portuguese law when the vulnerable adult resides in 
Portugal. Finally, a French judge argued that it was important to preserve the rule of 
lex fori in Article 13, as it is easier and more efficient for the national judge to enforce 
its  national  law,  -  with  the  exception  of  assets  (especially  real  estate),  which  can  be 
submitted to where the assets are held (lex situationis).  

Recognition of cross-border measures (Articles 22-24 of the 2000 Hague Con-
vention) 

Three  MSCAs  indicated  that  they  are  not  aware  of  any  practical  issues  or  chal-
lenges regarding the recognition of cross-border measures, while four stated that they 
are  aware  of  challenges  (the  Czech  Republic,  France,  Germany,  and  Portugal).  The 
Czech competent authority indicated that they experienced a case where the requesting 
authority demanded the appointment of a new guardian by the Czech court despite the 
fact that a guardian had already been appointed in the requested state, which is contrary 
to Article 22 of the Convention. The French competent authority indicated that certain 
banks require a declaration of enforceability in France of the foreign measure, in some 
cases this requirement applies even in order for the guardian to obtain a simple bank 
statement. The German competent authority indicated that although Article 22 stipu-
lates that measures taken in one Member State are recognised by operation of law in 
another Member State, a formal procedure of recognition is often required in practice. 

The  Portuguese  competent  authority  indicated  that  the  Public  Prosecution  Service 
takes  the  view  that  for  foreign  decisions  to  be  enforced  in  Portugal,  they  need  to  be 
reviewed and confirmed by Portuguese courts – according to Articles 22 and 25 of the 
Convention and Portuguese law. The Portuguese authorities understand that the Con-
vention does not exclude, for the purposes of implementing measures, the  exequatur 
procedure (Articles 23 and 25). The MSCA indicated that although the purpose of the 
review  is  not  to  obtain  a  national  judgment  identical  to  the  foreign  judgment,  but  to 
allow the foreign decision to operate in the national legal order, it is still, however, a 
judicial procedure that runs in a Court of Appeal. This court will only confirm the decision 
when there is no doubt as to the authenticity of the document containing the decision 
and that it is res judicata under the law of the country where the ruling was delivered, 
with  all  the  formalities  involved.  The  MSCA  thus  argues  that  the  approval  of  the 

86 Lagarde, P. 2017, Explanatory Report on the 2000 HCCH Protection of Adults Convention. Available at: 

https://www.hcch.net/en/publications-and-studies/details4/?pid=2951.  

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Convention’s “simple and rapid” recognition and enforcement procedure still needs to 
improve.  

Two legal practitioners highlighted difficulties due to the differences in legislation from 
one country to another, notably in relation to the duration of the measures and their 
imputation. A Portuguese judge also indicated that it is unclear whether recognition and 
declaration of enforceability should be made by courts of first instance (competent to 
declare the recognition and enforceability of decisions whenever required by EU Regu-
lations) or by second instance courts (competent to deal with the exequatur when con-
ditions provided for in national law are different from those laid out in the Convention).  

Enforcement of cross-border measures (Articles 25-27 of the 2000 Hague 
Convention) 

Only the French and Portuguese MSCAs stated that they are aware of practical issues 
or challenges with the enforcement of cross-border measures. Both MSCAs pro-
vided  the  same  explanation  as  in  the  case  of  recognition  of  cross-border  measures 
above. The French MSCA also noted that the absence of simple and rapid procedures in 
France  leads  vulnerable  adults  to  apply  for  longer  and  more  expensive  common  law 
procedures (e.g., exequatur in front of a judge with an obligation to have a lawyer).  

None of the legal practitioners reported issues directly relevant to the enforcement of 
cross-border measures. A French judge stated that there is a need for a legal instru-
ment that would allow a judge in one Member State to directly divest a case to a judge 
in another Member State without impediment.  

The vast majority of legal practitioners (16) stated that they have not experienced the 
application of “rapid and simple procedures” under Article 25 of the Convention.  

Only the Czech, French, and Portuguese competent authorities have encountered the 
issue  that  financial  institutions  require  a  declaration  of  enforceability  for  the  enforce-
ment of  cross-border measures under the Convention, instead of applying Article 25. 
The  Czech  authority  indicated  that  they  have  noticed  issues  with  the  recognition  and 
enforcement of foreign measures by financial institutions which tend to be overly formal. 
The Portuguese authority indicated that there was one case where the banking institu-
tion  recognised  the  powers  of  the  “guardian”  appointed  by  a  foreign  court  under  the 
terms of Article 22 of the Convention.  

Denial of recognition (Article 22(2)(a) of the 2000 Hague Convention) 

None of the MSCAs could provide data on the number of cases where the recognition 
of a measure was denied on the basis of Article 22(2)(a) and the Portuguese competent 
authority indicated that they are not aware of any such cases.  

Similarly,  all  the  legal  practitioners  who  responded  to  the  survey  questions  (19  in 
total) stated that they have not experienced a case where recognition was denied on 
the basis of Article 22(2)(a).  

Possible conflicts between the jurisdiction rules and applicable law regarding 
confirmation of powers of representation (Article 15) 

None of the survey respondents, neither MSCAs (seven in total) nor legal practitioners 
(20 in total), have experienced conflicts between the jurisdiction rules and the applicable 
law regarding confirmation of powers of representation, except one legal practitioner. A 
French notary observed that the French “mandat de protection future” cannot be acti-
vated if the vulnerable adult is abroad (i.e. by other authorities than the French ones) 
as the medical examination can only be carried out in France.  

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Similarly,  none  of  the  MSCAs  have  experienced  issues  in  other  States  regarding  the 
recognition  of  powers  of  representation  issued  by  their  State  on  the  ground  that  the 
formal requirements were not fulfilled. 

Certification of powers of representation (Article 38 of the 2000 Hague Con-
vention) 

None  of  survey  respondents,  neither  MSCAs  (seven)  nor  legal  practitioners  (18), 
reported issues when requesting, issuing or presenting the certificates under Article 38, 
except  the  Czech  central  authority  and  a  Finnish  legal  practitioner.  The  Czech 
competent  authority  indicated  that  problems  sometimes  occur  when  presenting  the 
certificate  to  financial  institutions,  which  are  unwilling  to  accept/recognise  the 
certificates, on the ground that they are insufficient as legal documents. The  Finnish 
legal practitioner stated that issuing the certificates is quite complicated, as the relevant 
Finnish law contains a long list of transactions subject to authorisation and a long list of 
family members with whom the guardian cannot enter into a transaction, due to conflict 
of  interests87.  Finnish  law  also  forbids  making  donations  of  the  adult’s  property  and 
stipulate  that  the  guardian/attorney  shall  not  be  competent  for  a  series  of  actions, 
including giving consent to marriage or adoption or acknowledging paternity or revoking 
the  will  of  the  vulnerable  adult.  All  of  which  must  be  taken  into  consideration  and, 
according to the respondent, create complication when issuing a certificate under Article 
38 of the Convention. Furthermore, during an interview, the Portuguese MSCA indicated 
that some necessary mechanisms for a full implementation of the Convention are still 
not in place or not fully in place, namely, the automatic recognition of foreign decisions 
(not possible under the current system) and the issuance of the certificate provided for 
in Article 38 of the Convention (no authority has yet been designated for this purpose). 

In the same vein, none of the legal practitioners who responded to the survey question 
(18) have been faced with a situation where the capacity and powers indicated in the 
certificate issued by another Member State have been challenged or  denied requiring 
recognition/enforcement proceedings pursuant to Articles 23 and 25 of the Convention.  

The Austrian, Czech and Portuguese competent authorities indicated that no other 
provisions in national law have been adopted regarding the certificate under Article 38 
of the Convention, although Portuguese courts require a certificate of the decision issued 
in another State subject to recognition/enforcement as a guarantee of its authenticity. 
In Austria and Belgium, it is the competent court who is responsible for drawing up the 
certificate under Article 38, while in Germany it is the registrar of the office of the adult 
guardianship court ("Betreungsgericht"), or if the case is pending in a higher instance, 
the clerk of the registry of such a court is responsible. In the Czech Republic and Portugal 
there is currently no competent authority for drawing up the certificate.  

Key findings: 

•  One MSCA argued that further promotion of the Convention towards legal prac-
titioners is necessary, while two highlighted the limited number of cases where 
the Convention has been applied which leads to a general lack of experience 
among practitioners.  

•  Most MSCA and legal  practitioner  respondents  have not  experienced particular 
issues in applying the general and specific provisions on jurisdiction (Articles 5-
12). The main issues highlighted were the unclarity over the notion of “habitual 
residence” and difficulties for competent authorities to obtain knowledge about 
any measures already taken by competent authorities under Articles  5 to 8 of 
the Convention; and the uncertainties related to the transfer of residence ( trans-
mission  of  information  and  of  competence  between  the  authorities  of  the  two 
countries involved). 

87 Finish Guardianship Services Act (442/1999). 

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•  Most MSCA and legal practitioner  respondents  have not  experienced particular 
issues  in  applying  the  provisions  on  applicable  law  (Articles  13-21).  Several 
legal  practitioners,  however,  did  indicate  that  in  practice  it  can  be  difficult  to 
determine which national law should be applicable in certain cases.  

•  The position of MSCAs is more mixed regarding the recognition of cross-border 
measures (Articles 22-24), with three respondents stating that they have expe-
rienced issues and four stating they have not. The issues highlighted are notably 
the need for additional procedures despite Article 22 of the Convention.  

•  No significant issues were  reported  regarding the enforcement of cross-border 
measures  (Articles  25-27),  although  three  MSCAs  indicated  that  difficulties 
have  been  experienced  in  obtaining  recognition  and  enforcement  of  foreign 
measures by financial institutions. Similarly, the vast majority of legal practition-
ers have not experienced the application of “rapid and simple procedures” under 
Article 25 of the Convention. 

•  None of the MSCAs could provide data on the number of cases where the recog-
nition of a measure was denied on the basis of  Article 22(2)(a) and none of 
the legal practitioners have experienced such cases.  

•  None  of  the  survey  respondents,  neither  MSCAs  nor  legal  practitioners,  have 
experienced  conflicts  between  the  jurisdiction  rules  and  the  applicable  law  re-
garding confirmation of powers of representation, except one legal practitioner. 
•  None of the survey respondents, neither MSCAs nor legal practitioners, reported 
issues when requesting, issuing or presenting the certificates under Article 38, 
except one MSCA and a legal practitioner. The MSCA indicated that financial in-
stitutions are sometimes unwilling to accept the certificate, while the legal prac-
titioner  highlighted  that  it  is  complicated  to  issue  a  certificate  due  to  different 
national provisions that must be taken into consideration.  

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4  Analysis of the potential for EU intervention 

4.1  Analysis of the need for EU intervention 

The general need for intervention at EU level on the question of the protection of vul-
nerable  adults  in  cross-border  cases  (regardless  of  the  form  of  such  intervention)  is 
increasingly acknowledged among the stakeholders involved in this discussion. This is 
illustrated  by  the  activities  recently  undertaken  by  EU  institutions,  and  is  vastly  sup-
ported by the stakeholders surveyed in the context of this study. It is also justified by 
challenges specific to the EU posed by the current  regulation  only  ensured under the 
Hague Convention.   

4.1.1  Acknowledgment of the need by stakeholders  

The European Union is committed to maintaining and developing an area of freedom, 
security and justice in which the free movement of persons is ensured. Several legisla-
tive measures have been enacted in view of this objective, including measures in the 
field  of  judicial  cooperation  in  civil  matters  pursuant  to  Article  81  TFEU.  The  existing 
measures in this field, however, fail to address the whole range of issues that the cross-
border mobility of persons entails. Specifically, no measures have been enacted so far 
by  the  Union  to  address  the  specific  needs  faced  by  vulnerable  adults.  Over  the  last 
fifteen years, EU institutions, stakeholders, legal practitioners and academics have re-
peatedly expressed their concerns about this gap.  

The general idea underlying those concerns may be resumed as follows: Adults who are 
not in a position to protect their interests due to an impairment or insufficiency of their 
personal faculties have a fundamental right to obtain the support they may require in 
order to exercise their legal capacity, including in cross-border situations. Unless such 
support can be effectively relied upon across the Member States, the full realisation of 
the rights of the adults concerned and their ability to enjoy on an equal basis with others 
the benefits of European regional integration are seriously at stake.  

4.1.1.1  EU institutional activity 

Since 2008, the need for action in this field has been noted on numerous occasions by 
a variety of EU institutions. By conclusions approved on 24 October 2008, the Council 
of the Union invited the Member States which had already concluded that it would be in 
their interest to accede to the 2000 Hague Convention to begin as quickly as possible, 
or actively continue with, procedures for its signature and/or ratification, and asked the 
Commission  to  follow  closely  the  experience  with  the  application  of  the  Convention, 
bearing  in  mind  relevant  discussions  in  the  Hague  Conference  and  in  the  Council  of 
Europe88. 

In a resolution of 18 December 2008 on the cross-border implications of the legal pro-
tection of adults89, the European Parliament noted the existence of cases ‘in which the 
implementation of legal protection [of vulnerable adults] concerns two or more Member 
States’, as well as cases that ‘concern two or more Member States and concern Member 
States and non-EU States’. Acknowledging that ‘the legal protection of vulnerable adults 
must be a pillar of the right of free movement of persons’, the Parliament congratulated 
those Member States which had signed and ratified the Hague Convention, and encour-
aged ‘those Member States which have not yet signed or ratified it to do so’. The Par-
liament also requested the Commission, ‘as soon as sufficient experience of the opera-
tion  of  the  Hague  Convention  has  been  acquired,  to  submit  to  Parliament  […]  a 

88 Council of the European Union, Press Release 2899th Council meeting, Justice and Home Affairs, Luxem-
bourg, 24 October 2008, 14667/08 (Presse 299), p.21 https://data.consilium.europa.eu/doc/docu-
ment/ST-14667-2008-INIT/en/pdf  

89 2008/2123(INI), OJ C 45E, 23.2.2010, p. 71–74. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

legislative proposal on strengthening cooperation between Member States and improv-
ing the recognition and enforcement of decisions on the protection of adults and inca-
pacity mandates and lasting powers of attorney’. 

The  Parliament  called  again  on  all  Member  States  ‘to  ratify  without  delay’  the  Hague 
Convention in a resolution dated 19 February 200990. In a resolution of 7 July 2016 on 
the implementation of the UNCRPD91, the Parliament ‘[r]ecognise[d] the multiple ways 
in which the Hague Convention on the International Protection of Adults can functionally 
assist in implementing and supporting the international obligations of the parties to the 
CRPD’. 

In  the  Stockholm  Programme  –  An  Open  and  Secure  Europe  Serving  and  Protecting 
Citizens, adopted in 200992, the European Council encouraged the Member States which 
had not done so yet to join the Convention “as soon as possible”, noting that the need 
for additional proposals regarding vulnerable adults should be assessed in the light of 
the  experience  acquired  in  the  application  of  the  Convention  by  the  Member  States. 
Both  the  Commission  (as  announced  in  its  Action  Plan  Implementing  the  Stockholm 
Programme, dated 20 April 2010)93 and the Secretariat of the Council have since been 
active  monitoring  the  steps  taken  by  Member  States  towards  the  ratification  of  the 
Hague  Convention.  Questionnaires  were  circulated  for  this  purpose  among  Member 
States in 2010, 2014, 2015 and 201694. 

On 1 June 2017, the European Parliament adopted a new resolution95 specifically con-
cerning the protection of vulnerable adults. Relying on Article 225 of the TFEU, it asked 
the Commission to prepare a proposal for a regulation regarding the protection of vul-
nerable  adults.  In  August  2017,  the  Commission  expressed  the  view  that  the  focus 
should rather be on ensuring that the Member States that have not yet done so, ratify, 
or  accede  to,  the  Hague  Convention96. In  the  Strategy  for  the  Rights  of  Persons  with 
Disabilities 2021-2030, issued on 3 March 202197, the Commission expressed its inten-
tion to ‘work with Member States’ to implement the Hague Adults Convention ‘in line 
with the UNCRPD’. The  Portuguese  Government included the protection of  vulnerable 
adults among the priorities of the Portuguese Presidency of the Council, in the first half 
of  202198.  A  High-level  Conference  was  convened  on  30  March  2021  to  discuss  the 
matter. 

In its seminal Conclusions on the protection of vulnerable adults across the European 
Union,  adopted  at  the  Justice  and  Home  affairs  meeting  of  7  and  8  June  202199,  the 
Council observed at the outset that, as a ‘human rights instrument with an explicit social 
development dimension’, the UNCRPD ‘brought about a paradigm shift in relation to the 
legal capacity of persons with disabilities by affirming that all persons with disabilities 
should  enjoy  legal  capacity  on  an  equal  basis  with  others’.  Specifically,  the  Council, 
having recalled that the CRPD requires that appropriate measures be taken to support 
persons  with  disabilities  in  the  exercise  of  their  legal  capacity,  stressed  that  the 

90 2008/2209(INI), OJ C 76E , 25.3.2010, p. 23–30. 
91 2015/2258(INI), OJ C 101, 16.3.2018, p. 138–162. 
92 OJ C 115, 4.5.2010, p. 1–38. 
93 COM(2010) 171 final. 
94 See the following documents of the Council: no. 18083/10 of 20 December 2010; no. 11659/14 of 11 July 
2014; no. 5381/15 of 5 February 2015, as complemented by document no. 5864/15 of 25 February 
2015; no. 13969/16 of 4 November 2016 and 13969/2016 REV of 21 December 2016. 

95 2015/2085(INL), OJ C 307, 30.8.2018, p. 154–160. 
96 European Commission, Follow up to the European Parliament resolution of 1 June 2017 with 
recommendations to the Commission on the protection of vulnerable adults, SP(2017)510. 

97 COM(2021) 101 final. 
98 https://eu2021.justica.gov.pt/en-gb/ 
99 OJ C 330I , 17.8.2021, p. 1–6. 

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implementation the CRPD itself and the 2000 Hague Convention ‘shares the objective 
of promoting and protecting the rights of persons with disabilities’.  

Based  on  the  foregoing,  the  Council:  (a)  invited  the  Member  States  that  are  already 
parties  to  the  Hague  Convention  to  promote  greater  awareness  of  the  Convention 
among courts, practitioners and all stakeholders involved in its implementation; (b) in-
vited  the  Member  States  that  are  engaged  in  procedures  to  ratify  the  Convention  to 
advance such procedures ‘with a view to finalising the ratification as swiftly as possible, 
in particular in view of the upcoming Special Commission on this Convention organised 
by the Hague Conference on Private International Law’, due to take place in 2022; (c) 
invited all other Member States to commence  and/or advance domestic consultations 
on a possible ratification ‘as swiftly as possible’.  

4.1.1.2  Stakeholders, practitioners and academics 

Pressure to take legislative action in this field has also been noted outside EU institu-
tions. From 5 to 7 December 2018 a conference took place in Brussels organised jointly 
by the European Commission and the Hague Conference on Private International 
Law. Approximately 130 experts from more than 35 States representing all continents 
gathered to stress the practical importance of the topic. A number of recommendations 
and  conclusions  were  reached  including:  (a)  an  invitation  to  States  that  are  not  yet 
contracting parties to the 2000 Hague Convention to assess the possibility and benefits 
of joining, (b) a note of the complementary nature  of the Hague Convention and the 
UNCRPD, (c) that cross-border transportability of measures under the 2000 Hague Con-
vention could be improved by the development of a public country Profile for each Con-
tracting State.  

The voice for urgent action in this field was also reiterated in 2020 in a report from the 
European  Law  Institute  (ELI).  The  ELI  project  began  in  2017,  coordinated  by  Pietro 
Franzina  and  Richard  Frimston,  and  was  approved  by  the  ELI  Membership  in  March 
2020. The Report encourages the EU to consider both external action and the enactment 
of legislation in the field of the protection of adults, as well as providing detailed analysis 
on the protection of adults in international situations100.  

Also in the context of this study, stakeholders from all EU Member States (parties and 
non-parties  to  the  Hague  Convention)  expressed  the  need  for  more  harmonisation, 
through their answers to several questions of the survey. 

Stakeholder opinions on the need for more harmonisation of the jurisdiction 
rules 

Legal practitioners were asked whether they believe there is a need for more harmoni-
sation of the jurisdiction rules (regardless of the question of its form, i.e. ratification of 
the Hague Convention or adoption of an EU instrument). Out of 43 respondents, more 
than half (53 %) responded positively, while 26 % believe there is no need for more 
harmonisation of the jurisdiction rules.  

100 Franzina, P., Frimston, R., The Protection of Adults in International Situations, European Law Institute, 

Vienna 2020: 59 http://hdl.handle.net/10807/150070  

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Figure 12: Do you believe there is a need for more harmonisation of the jurisdiction 
rules? (legal practitioners survey, N=43) 

Among those who responded positively, several mentioned that this would simplify and 
speed  up  procedures.  Three  practitioners  argued  that  the  differences  in  legislation 
across Member States make it difficult to access and understand information and creates 
difficulties for the application of the Hague Convention. They believed it would be easier 
to  acknowledge  the  decision  from  other  Member  States  and  provide  all  information 
needed if all Member States had the same rules. A French judge argued for a regulation 
enforcing clear rules for international jurisdiction, to avoid judge shopping and embez-
zlement in cross-border situations. Among those who do not believe there is a need for 
more harmonisation of the jurisdiction rules, two stated that the Hague Convention is 
clear  enough.  Three  notaries  also  stated  that  the  rules  on  jurisdiction  in  the  Hague 
Convention are complete enough to tackle all specific situations at individual level and 
to avoid situations of non-protection. 

Stakeholder opinions on the need for more harmonisation of the rules on ap-
plicable law 

In the same vein, legal practitioners were also asked whether they believe there is a 
need for more harmonisation of rules on applicable law. Out of 37 respondents, the vast 
majority (89 %) responded positively, while only 11 % responded negatively. Among 
those that responded positively many of the same arguments mentioned in relation to 
the question above were repeated, mainly that it would simplify procedures. In addition, 
several respondents argued for more flexibility for persons to choose the applicable law 
while they are capable. Four notary respondents mentioned that “professio juris” could 
be  extended  to  other  aspects  of  the  law  on  safeguarding  vulnerable  adults  than  the 
powers of representation (Article. 15) within the scope of the Hague Convention, which 
would strengthen the autonomy of citizens. Similarly, a notary also argued that it would 
be useful to introduce rules on adaptation, due to national variations in the instruments 
of protection of vulnerable adults. This respondent argues that there is a need for a rule 
inspired  by  Article  31  of  Regulation  (EU)  No  650/2012  of  4  July  2012  on  matters  of 
succession101  (hereinafter,  the  European  Succession  Regulation)  aiming  to  apply  the 
closest  adult  protection  instrument  available  under  the  applicable  national  law  in  the 
Member State in which the representation right is invoked. Only one practitioner who 
responded negatively provided an explanation, stating that “lex fori” is sufficient. 

101 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdic-
tion, applicable law, recognition and enforcement of decisions and acceptance and enforcement of au-
thentic instruments in matters of succession and on the creation of a European Certificate of Succession, 
OJ L 201, 27.7.2012, p. 107–134. 

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Stakeholder opinions on the need for more harmonisation of recognition and 
declaration of enforceability 

When asked whether they believe there is a need for more harmonisation of recognition 
and  declaration  of  enforceability  proceedings,  the  vast  majority  of  legal  practitioners 
who were able to respond to the question answered positively (94 % out of 36 respond-
ents). Only 6 % responded negatively. Seven notary respondents argued that the Con-
vention  (Article  22)  only  provides  for  recognition  and  enforcement  of  protection 
measures (judicial or administrative protection measures). However, they believe that 
harmonisation  should  be  extended  to  the  acceptance  and  execution  of  authentic  acts 
comprising  powers  of  representation  or  documenting  other  self-protective  measures 
based on the principle of party autonomy. 

Similarly, MSCA authorities were asked whether there would still be a need for additional 
harmonisation of the rules on the recognition and enforcement of measures of protection 
if all Member States were party to the 2000 Hague Convention. The majority (9 out 16) 
stated that they did not know, five responded yes, and two responded no.  

Figure 13: Do you believe that if all EU Member States were party to the 2000 Hague 
Convention there would still be a need for additional harmonisation of the rules on the 
recognition and enforcement of measures of protection, so as to further improve the 
movement of measures of protection between Member States? (MSCAs survey, N=16) 

One of the MSCAs that responded positively stated that cooperation would be closer and 
that  it  could  also  enable  the  circulation  of  private  mandates  and  other  documents  to 
expedite  procedures.  Another  indicated  that  the  ratification  of  the  Convention  by  all 
Member  States  is  becoming  increasingly  necessary  in  light  of  increasing  cross-border 
mobility of EU citizens and an ageing population. The two MSCAs that responded nega-
tively argued that additional rules inside the EU would be less beneficial than the appli-
cation of the same rules to all parties of the Convention and that an EU legislative act 
would  lead  to  an  unnecessary  co-existence  of  applicable  legal  regimes.  Among  those 
that responded, ‘I do not know’, three mentioned the need for further discussions at EU 
level with all Member States on the possibility of introducing harmonised rules and the 
need to wait for the evaluation of the implementation of the Hague Convention planned 
in 2022. Another argued that the need for additional harmonisation cannot be estab-
lished before there is experience with the 2000 Hague Convention ratified by all Member 
States. One MSCA also emphasised that any action at EU level should not diminish ef-
forts to extend the membership of the Hague Convention, not only within the EU, but 
also to third countries. 

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Abolition of declaration of enforceability (exequatur) requirements 

Out  of  32  legal  practitioners,  the  vast  majority  (88  %)  believed  that  the  abolition  of 
declaration of enforceability (exequatur) requirements would be beneficial for the cross-
border protection of vulnerable adults, while 13 % did not. Several respondents (eight) 
highlighted that mutual trust/recognition has been a growing trend in EU law, notably 
in the context of completing the EU’s Area of Freedom, Security and Justice. According 
to  these  stakeholders,  the  benefits  of  the  abolition  of  exequatur  have  been  shown  in 
numerous legal areas at EU level. Another five stakeholders argued that the abolition of 
exequatur  would  greatly  speed  up  procedures  and  reduce  costs.  These  stakeholders 
argued that the need for quick and responsive judicial decisions are all the more im-
portant for vulnerable adults who often require urgent care. A French judge in favour of 
the abolition of exequatur nonetheless highlighted the very limited use of exequatur in 
practice, as it is generally easier to open a new legal protective measure in front of a 
national judge, notably as third parties do not fully understand the procedure and tend 
to ask for national decisions. On the other hand, one stakeholder who was against the 
abolition  of  exequatur  stated  that  it  would  completely  bypass  the  authority  of  local 
courts.  

4.1.2  Existing shortcomings justifying EU intervention 

At this stage, it is important to draw attention to two important aspects of the Union’s 
power based on Article 81: firstly, that the protection of adults does not fall within the 
topic of family law (and is therefore not subject to the special procedure provided for 
under  article  81(3)  TFEU),  and  secondly  that  the  Union  also  has  a  parallel  ‘external’ 
competence based on Article 216 TFEU which includes the possibility to conclude inter-
national conventions as well as to entertain international relations.102  

The  lack  of  harmonised  private  international  law  rules  in  this  field  results  in  various 
shortcomings. These may be grouped under the following five headings.  

4.1.2.1  Gaps and inconsistencies in the protection of the adults concerned 

The lack of harmonised rules of private international law across the Union entails a risk 
of gaps and inconsistencies in the protection of adults in cross-border cases. The diver-
sity of the rules on jurisdiction, for example, means that the authorities of two or more 
Member States may come to assert their jurisdiction as regards the protection of the 
same adult.  

Illustration 

If the adult whose protection is at issue is a national of one Member State but habit-
ually  resides  in  another  Member  State.  If  the  authorities  of  the  first  Member  State 
claim jurisdiction based on the nationality of the adult, whereas the authorities of the 
second Member State rely on the latter’s habitual residence, then a “positive” con-
flict of jurisdiction arises.  

Problem: the problem lies not so much in the fact that jurisdiction could be asserted 
on  different  grounds,  but  in  the  fact  that,  due  to  the  lack  of  harmonised  rules  on 
parallel proceedings in Member States which are not (both) parties to the Convention 
(see Section 2.3.2.1 above), the described conflict would  prove very difficult to 
manage under the domestic rules of private international law. The likely out-
come is that the authorities of the first Member State and those of the second Member 
State would remain seized of the matter, and possibly grant the measures they deem 
appropriate. The protection of the adult in question would then be shaped in each of 
the  two  Member  States  by  the  measures  rendered  by  the  local  authorities.  Those 

102 See for example the findings of the ELI report, p. 19-20, as well as the EU Parliament Report, European 

Added Value Report, Protection of Vulnerable Adults, 2016, p. 72-85.  

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measures  may  of  course  be  different,  content-wise,  and  thus  lead  to  problems  in 
cross-border recognition and enforcement.  

The resulting situation would be even more serious if the measures of protection given 
in the two States aimed, as it is customary, to protect the interests of the adult wher-
ever they arise (i.e., they are not territorial in nature). 

Additional practical difficulties could occur, in the described scenario, if the interests of 
the adult happen to be located also in a third Member State. The question will then arise 
whether recognition should be granted in the third State to the measures of pro-
tection given either in the first or in the second Member State. Should neither measure 
qualify for recognition, the authorities of the third Member State will have no option but 
to adopt their own measures of protection.  

All of this is hardly consistent with the fundamental rights of the adults concerned, 
as  enshrined  in  the  UNCRPD,  the  European  Convention  of  Human  Rights  (ECHR)  and 
the Charter of Fundamental Rights (CFR). Article 12(3) of the CRPD requires that State 
parties ‘take appropriate measures to provide access by persons with disabilities to the 
support  they  may  require  in  exercising  their  legal  capacity’.  Those  measures  could 
hardly be characterized as appropriate if the protection they provide is spatially limited 
or is likely to conflict with the protection provided by foreign measures. The ECHR, the 
respect for which is ensured as a matter of Union law under Article 6 of the Treaty of 
the European Union (TEU), does not refer specifically to the protection of adults. How-
ever,  the  European  Court  of  Human  Rights  has  stressed  on  numerous  occasions  that 
protecting adults with disabilities from undue influence, safeguarding their personal au-
tonomy and ensuring their social inclusion is crucial to the realisation of the fundamental 
rights that the ECHR is meant to protect103. Since the measures of protection given in 
one State are meant precisely to arrange for those needs, a lack of coordination among 
States is likely to frustrate the effectiveness of the protection provided to the adult in 
question. Similar remarks apply to Article 26 of the CFR, whereby ‘[t]he Union recog-
nises and respects the  right of persons with disabilities to benefit from measures de-
signed to ensure their independence, social and occupational integration and participa-
tion in the life of the community’. 

One  possible  issue  for  discussion  is  the  right  of  the  vulnerable  adult  to  be  given  the 
opportunity to be heard and express his or her views with regard to the measure to be 
taken. Although Article 22(2)(b) of the Hague Convention refers to the opportunity to 
be heard as a ground for non-recognition, this can only be invoked where the absence 
of such an opportunity would lead to a breach of the fundamental rights of the vulnerable 
adult concerned. Further issues have also been signalled in legal literature. However, 
some  of  these  issues  could  be  regarded  as  temporary  issues,  in  the  sense  that  they 
would be solved if all EU Member States were to become Parties to the Hague Conven-
tion. For instance, problems may arise as regards situations at the intersection of chil-
dren’s and adults’ protection, notably where measures of protection are taken in respect 
of a person aged less than 18, which are meant to stay in place after the person con-
cerned has reached the age of 18. The 1996 and the 2000 Hague Convention, where 
they are both applicable, ensure those situations are dealt with properly. Uncertainties 
exist, by contrast, if a similar situation arises in a State that is only bound by the former 
instrument. 

4.1.2.2  Limited reliability of advance planning 

Pursuant to Article 12(4) of the UNCRPD, the measures relating to the exercise of legal 
capacity must, among other things, respect the will and preferences of the person con-
cerned. As observed by the Committee of Ministers of the Council of Europe in its Rec-
ommendation 11 of 9 December 2009 on continuing powers of attorney and advance 

103 See, among others, the Court’s judgments in Glor v Switzerland of 30 April 2009, Shtukaturov v Russia 

of 27 March 2008, Stanev v Bulgaria of 17 January 2012, and AN v Lithuania of 31 May 2016. 

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directives for incapacity, “self-determination is essential in respecting the human rights 
and  dignity  of  each  human  being”104.  The  survey  conducted  for  the  purposes  of  the 
present report suggests that a significant (and growing) number of persons in the EU 
plans for their own incapacity or are ready to do so. In the absence of a body of harmo-
nised rules of private international law, the risk exists that the  arrangements made 
by an adult in conformity with the law of one country may not be enforced, in 
whole or in part, in another country. 

Illustration 

A private mandate has been entered by an adult in accordance with the law of Member 
State X, at the time when the adult lived in X. The adult moves to Member State Y, 
and only there does the need arise for the adult in question to obtain support for the 
exercise of legal capacity 

Problem: if the conflict-of-laws rules in force in Y (not party to the Hague Conven-
tion) provide that the law applicable to the mandate is the law of a State other than 
X, this may hinder the enforceability of the mandate, or alter its scope and effects. 
All in all, the mandate may not be operational in Member State Y, or it may produce 
effects that do not correspond in full to those envisaged by the adult. In either case, 
this would frustrate the self-determination of the adult concerned. A number of stake-
holders  have  raised  practical  issues  linked  to  the  change  of  residence  of  the  adult 
between the establishment of the mandate and its entry into force (see Sections 3.3 
above)   

Problems  such  as  this  are  likely  to  arise  after  the  adult  concerned  is  no  longer  in  a 
position  to  protect  their  interests,  that  is,  at  a  time  when  the  adult  is  precluded,  by 
definition, from reviewing and adjusting the planning, so as to conform with the appli-
cable law. In the end, the absence of harmonised rules of private international law may, 
in cross-border cases, prevent the adults concerned from making full use of their right 
to self-determination, as required, again, by the CRPD, the ECHR and the CFR.  

4.1.2.3  Obstacles to the free movement of persons across borders 

The diversity of law in this area makes it difficult for vulnerable adults, as well as for 
those involved in their protection and for any interested third parties to assess the legal 
implications  of  cross-border  elements.  The  transfer  of  the  adult  concerned  from  one 
Member State to another, or the fact that the property of the adult is in two or more 
Member States, give rise to legal issues the assessment of which may change depending 
on  the  State  from  the  standpoint  of  which  those  issues  are  addressed.  The  resulting 
uncertainty  could  deter  mobility  and  entail  extra  costs,  namely  to  obtain  legal 
information.  

Illustration 

If  a  guardian  is  appointed  in  Member  State  X  is  to  discharge  some  of  his  duties  in 
Member State Y and Z, where property belonging to the protected adult is located: 
the guardian would need to seek legal assistance to determine the conditions subject 
to which the relevant measures given in X may be recognized (and enforced) in Y and 
Z.  

Problem:  Unless  the  same  rules  apply  to  the  recognition  of  foreign  measures  of 
protection in Y and Z, which is not necessarily the case in all EU Member States (see 
Section  2.3.2.2  above),  the  guardian  will  have  to  seek  legal  assistance  in  each  of 
those States, and accordingly incur extra costs. 

104 https://www.coe.int/en/web/cdcj/activities/powers-attorney-advance-directives-incapacity  

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Mitigating the above uncertainty and costs would enhance the freedom of movement of 
EU citizens across the Union and make the advantages of the construction of an area of 
freedom, security and justice more readily accessible to all those concerned. 

4.1.2.4  Obstacles to the proper functioning of the internal market 

The protection of vulnerable adults may involve, as observed, measures relating to the 
property  of the adult concerned. The appointed guardian or the grantee  of powers  of 
representation may, depending on the circumstances, have authority to assist or repre-
sent the adult in connection with transactions  entered into  on behalf  of the latter. In 
cross-border cases, the assessment of the existence, scope and manner of exercise of 
the guardian’s or the attorney’s authority involves the application of private international 
law rules. Lack of uniformity in the latter rules results in uncertainty. 

Uncertainty as to who is entitled to manage an adult’s assets may be detrimental not 
just to the adult in question but also to any third parties involved. The harmonisation of 
private international law rules would enhance  legal security in cross-border cases 
for the benefit of all those interested in those rights, including any relevant third parties.  

Without an appropriate degree of cross-border legal security, the mobility of a vulnera-
ble adult and the transfer of the latter’s property could result in additional costs for the 
creditors of the adult in question and, generally, those having an interest in the adult’s 
property. 

4.1.2.5  Difficulties in the practical cooperation between Member States 

The lack of harmonised rules may prevent the authorities of individual Member States 
to perform some of their tasks relating to the protection of adults as efficiently 
as the circumstances require. Cooperation between the authorities of different States is 
often practically impossible, and overall little effective, if the States in question do not 
share, at least, some common rules. 

Illustration 

If, under a measure of protection given in Member State A, a young adult is placed in 
an  establishment,  in  that  State,  where  his  protection  may  be  ensured.  The 
establishment is close to where his brother lives. Now suppose that the man’s brother 
decides to settle in Member State B. Ensuring that the two brothers continue to enjoy 
their mutual company may be crucial to the well-being of the young adult in question. 
This  may  involve  a  transfer  of  the  adult  from  the  establishment  in  A  to  a  similar 
establishment in B. A smooth, rapid and unproblematic transfer will hardly be possible 
without  a  regulatory  framework  common  to  the  two  States:  a  transfer  of  this  kind 
presupposes  that  the  authorities  of  the  two  States  make  a  number  of  practical 
arrangements, and that the jurisdiction of on State cease as soon as the adult enters 
the jurisdiction of the other, without gaps. 

Problem:  In  practice,  the  risk  exists,  in  the  absence  of  harmonised  rules,  that  a 
transfer from A to B may prove difficult and time-consuming, or be precluded outright, 
no matter whether the authorities in A consider that the transfer is in the best interest 
of the adult in question, and irrespective of whether the establishment in B would be 
ready to welcome him. 

Key findings:  

•  No legislative measures have been enacted so far by the European Union to ad-

dress the specific needs faced by vulnerable adults.  

•  Over the last fifteen years, EU institutions, stakeholders, legal practitioners and 
academics have expressed repeatedly their concerns about this gap. Since 2008, 
the Council of the EU and the European Parliament have regularly underlined the 
need  for  action  in  that  area,  inviting  Member  States  to  ratify  the  Hague 

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Convention. Both the European Commission and the Secretariat of the Council 
have  since been active  monitoring the  steps taken by Member States  towards 
the ratification of the Convention. The EU institutions have continued being active 
in that area, most recently with the Council conclusions of the Justice and Home 
Affairs meeting of June 2021, which invited Member States parties to the Con-
vention to raise awareness and Member States non-parties to ratify the Conven-
tion.  

•  Similar actions have been undertaken by other stakeholders, including the Hague 

Conference on Private International Law and academia.  

•  More than half of the legal practitioner respondents to our survey believed there 
is a need for more harmonisation of the jurisdiction rules and of the rules on 
applicable law, to simplify and speed up procedures. The majority of legal prac-
titioners also believed there is a need for more harmonisation of recognition and 
declaration of enforceability. MSCAs on the other hand have a more mixed posi-
tion. The majority believed that there is a need for further discussions at EU level 
to evaluate the necessity of EU action.  

•  Although the EU has, in principle, no competence to harmonise substantive and 
procedural law in the area of justice, the harmonisation of private interna-
tional  law  rules does fall  within the  scope of the powers vested in the 
Union by Article 81 of the TFEU.  

•  With regard to the protection of vulnerable adults in the EU, the harmonisation 
of the private international law rules would address a number of issues. This 
includes gaps and inconsistencies in the protection of the adults concerned (e.g. 
in case of unresolved conflict of jurisdiction), a limited reliability of future man-
dates (e.g. in case arrangements made in one Member States are not enforced 
in a second one), obstacles to the free movement of persons and to the proper 
functioning of the internal market (the absence of legal certainty affects mobility 
and  exchanges),  as  well  as  in  difficulties  in  the  practical  cooperation  between 
Member States (the lack of common rules affect efficiency where more than one 
authority is involved). 

4.2  Analysis of the instruments for EU intervention 

There  is  a  persistent  need  for  a  common  framework  in  the  protection  of  vulnerable 
adults in cross-border cases within the EU. 

The  surveys  to  MSCAs  and  legal  practitioners  carried  out  in  the  context  of  this  study 
included several questions on potential methods/tools to facilitate the cross-border pro-
tection of vulnerable adults. Stakeholders were  asked to rank nine options from their 
most preferred (1) to least preferred (9). The outcome is presented in Figure 14 below.  

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Figure 14: In your opinion, which of the following options would facilitate the cross-
border protection of vulnerable adults the most? Please rank by preferred option from 
1 (best option) to 9 (worst option) (MSCAs and legal practitioners surveys, N=49) 

Across all respondents (49 in total) the preferred option to facilitate the cross-border 
protection of vulnerable adults is a general ratification of the 2000 Hague Conven-
tion by all EU Member States. Three MSCAs emphasised that a general ratification of 
the 2000 Hague Convention would be the most effective way to ensure the cross-border 
protection  of  vulnerable  adults  by  consolidating  the  legal  framework  the  Convention 
already established and for relations with third countries.  

The abolition of exequatur and the introduction of EU forms to certify the deci-
sion in the state of origin was ranked second, followed by a greater harmonisation of 
recognition of protective measures. One MSCA stated that EU law could harmonise the 
exequatur  procedure  and  also  consider  the  abolition  of  exequatur  among  Member 
States, while another indicated that abolishing exequatur and replacing it with a certif-
icate would be the most effective way of simplifying and speeding up proceedings. An-
other MSCA did not support parallel legislation and/or duplication of rules as they believe 
it would lead to confusion in an already complex environment. 

Interconnecting  national  registries  of measures  of  protection  was  ranked  fifth 
by the stakeholders. One legal practitioner argued that national registries are the most 
efficient way of avoiding litispendence and that a national jurisdiction should be assigned 
to  each  individual  situation.  This  practitioner  believes  that  the  transfer  of  jurisdiction 
should be implemented, with all the relevant elements of the dossier included within, 
without an obligation to be translated. On the other hand, an MSCA argued that inter-
connecting national registries of measures of protection would likely add extensive ad-
ministrative barriers and burden that outweigh the practical benefits, notably as not all 
certificates  of  representation  are  registered  and  not  all  Member  States  have  such  a 
registry. For this MSCA, the current general practice of granting access to existing reg-
istries applicable in their Member State is easier. 

The least preferred option is reliance on interpretation by the CJEU. Several stake-
holders suggested other options, which included providing practitioners with information 
on substantive law; providing legal aid for vulnerable adults which covers the costs of 
translation; and creating country profile information sheets.  

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Two  main  instruments  may  be  considered  for  the  EU  to  intervene  and  cater  for  such 
framework: the ratification of the Hague Convention by all Member States and/or the 
adoption of an instrument at EU level.  

4.2.1  Ratification of the 2000 Hague Convention 

As  illustrated  above,  stakeholders,  practitioners  and  academics  largely  agree  that  a 
broad ratification of the Hague Convention would significantly enhance the protection of 
vulnerable adults across the Union. This also comes out of the question specifically asked 
on this point in the consultation carried out for this study, the result of which is pre-
sented in Section 4.2.1.1 below.  

If  the  EU  is  to  take  any  measure  relating  to  the  protection  of  adults  in  international 
situations, those measures must arguably aim, inter alia, to ensure that more Member 
States – or, indeed, all of them  – join the Convention. The various options to ensure 
ratification  and  of  their  feasibility,  as  well  as  the  added  value  of  such  ratification  are 
presented respectively in Sections 4.2.1.2 and 4.2.1.3 below.  

4.2.1.1  Perception of stakeholders on ratification 

Legal  practitioners  and  MSCAs  were  asked  whether  they  believe  that  all  EU  Member 
States should ratify the 2000 Hague Convention. The majority of respondents who 
provided  an  answer  (31  legal  practitioners  and  12  MSCAs)  responded  posi-
tively, two MSCAs indicated that further reflexions are needed. Many stakehold-
ers  stated  that  this  would  lead  to  uniformity  and  harmonisation  of  jurisdiction 
norms  and  rules on the applicable  law, in  turn greatly  simplifying procedures, 
ensuring better cooperation among all parties involved, increased legal certainty, 
and ultimately leading to a better protection of vulnerable adults.  

Several notaries (five) argued that the Convention is a step forward in the field of pro-
tection of vulnerable adults mainly by appointing the authority charged of adopting the 
relevant protection measures and by determining the law applicable to the powers of 
representation  and  to  the  exercise  of  the  representation  of  the  vulnerable  adult.  A 
French legal practitioner stated that although they have not needed to apply the Con-
vention often, they have found it useful and necessary in cases when they had to use 
it, while another respondent stated that Article 38 certificates are useful for practition-
ers. One MSCA highlighted the increasing mobility of citizens within the EU and a 
steady increase in the number of cases falling within the scope of the Convention, which 
will increase the necessity of the Convention. Another MSCA stated that a general rati-
fication of the Convention would contribute to the real protection of adults and lead to 
a ‘free circulation of decisions’, thus also contributing, in a complementary way, to the 
realisation of some of the procedural rights and guarantees enshrined in the UNCRPD. 
Finally, one MSCA stated that it could lay the ground for possible further discussions on 
future cooperation within the EU, if these are deemed necessary. 

The doubts voiced by a minority of stakeholders regarding the compatibility of the Hague 
Convention with the UNCRPD appear to be unjustified. As it arises from a joint statement 
by the Special Rapporteur on the rights of persons with disabilities, Gerard Quinn, and 
the Independent Expert on the enjoyment of all human rights by older persons, Claudia 
Mahler,  dated  8  July  2021,105  nothing  in  the  Hague  Convention  is  intrinsically  incon-
sistent with the UNCRPD. A study authored by Sonia Rolland and Alex Ruck Keene, 106 
commissioned by the Special Rapporteur on the rights of persons with disabilities, con-
cluded  that  there  are  a  number  of  ways  in  which  the  framework  of  the  2000  Hague 

105 ‘Toward Greater Coherence of International Law: Reflections on the Hague Convention (2000) on the In-
ternational Protection of Adults’, available at https://www.ohchr.org/EN/Issues/Disability/SRDisabili-
ties/Pages/CommentsLegislationPolicies.aspx. 

106 ‘Interpreting the 2000 Hague Convention on the International Protection of Adults Consistently with the 
UN Convention on the Rights of Persons with Disabilities’, 3 June 2021, available at https://t.co/3t5uB-
dpugN?amp=1. 

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Convention is capable of evolving to reflect the ‘operationalisation’ by both current and 
future Contracting States of the UNCRPD within their domestic legal systems.  For the 
same reasons, the institution of an EU common framework of private international law 
rules would not be likely to undermine the UNCRPD. 

4.2.1.2  Legal feasibility of the ratification 

Legal feasibility under the Convention 

The Union cannot itself become a party to the 2000 Hague Convention. Articles 53 and 
54 of the Convention make it clear that the latter is only open to sovereign States, not 
to international organisations. Where the Union is willing to join international agreement 
that is open only to States, the practice consists for the Union in authorizing (and 
in  fact  obliging)  the  Member  States  to  ratify  or  accede  to  the  agreement  in 
question ‘in the interest of the Union’. This means that, as a matter of international 
law, the agreement – once ratified or acceded to by the Member States concerned – will 
bind  those  Member  States  and  operate  as  a  source  of  rights  and  obligations  for  the 
latter, not for the Union, whereas, as a matter of Union’s law, the agreement will form 
part, in principle, of the acquis of the Union.  

Legal feasibility under the TFEU 

The Union cannot join an international convention – be it directly or through its Member 
States  –  unless  it  has  the  competence  to  do  so.  Article 216 TFEU determines the 
cases in which such a competence exists. The Union’s external competence may be 
either exclusive or non-exclusive. Conventions falling within the scope of the exclusive 
external competence of the Union may only be concluded by the Union itself: individ-
ual Member States cannot, without the authorization of the Union, become a party to 
those conventions. Conversely, the individual Member States remain free to ratify 
or accede to such conventions as fall within the scope of the non-exclusive exter-
nal competence of the Union, as long as the Union does not avail itself of such a 
power. 

Views differ as to whether the conclusion of the 2000 Hague Convention falls within the 
external competence of the Union. Various arguments may be put forward to support 
the view that the Union has indeed the non-exclusive power to join the 2000 Convention, 
through its Member States. Those arguments are presented below. 

According to Article 216(1) TFEU, the Union may conclude an international agreement 
in any of the following cases: (a) where the Treaties or a legally binding act so provide, 
(b) where the conclusion of an agreement ‘is likely to affect common rules or alter their 
scope’,  and  (c)  where  the  conclusion  of  such  an  agreement  ‘is  necessary  in  order  to 
achieve, within the framework of the Union’s policies, one of the objectives referred to 
in the Treaties’.  

It may be argued that  the conclusion  of the 2000 Hague Convention  fits into case  © 
above. It is convenient to discuss each of the above scenarios separately. 

(a) Neither the Treaties nor EU legislation provide for the conclusion of the 
Convention 

The conclusion of the 2000 Hague Convention clearly falls outside case (a), for neither 
the Treaties nor any legally binding acts make specific provision to that effect.  

(b) The Convention does not affect the operation of any existing EU rules 

The conclusion of the Convention similarly falls outside case (b). Actually, nothing in the 
Convention would seem to affect the operation of common EU rules or alter their scope, 
at least in the manner required to establish external competence.  

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This point deserves to be examined more in detail. The Union has made use of its ex-
ternal competence on various occasions in the field of judicial cooperation in civil mat-
ters. So far, it has invariably relied on the fourth and last ground listed in Article 216(1) 
TFEU. In fact, all international agreements concluded by the Union in this area related 
to matters within the scope of existing EU legislation. The conclusion  of those agree-
ments would have accordingly affected the “common rules” set forth in such legislation 
or altered their scope. This is also why the external competence of the Union in the field 
of private international law has always presented itself as exclusive in nature: pursuant 
to Article 3(2) TFEU, the external competence of the Union is exclusive, inter alia, in so 
far  as  the  conclusion  of  the  international  agreement  concerned  “may  affect  common 
rules or alter their scope”107. That is not the case with respect to the 2000 Hague Con-
vention, since none of the legislative measures enacted so far by the Union to regulate 
jurisdiction, applicable law and the recognition and enforcement of judgments apply to 
matters within the  scope  of the Convention.  The  provisions of the  Convention do 
not  accordingly  affect  the  operation  of  any  existing  EU  rules,  nor  alter  their 
scope.  

Admittedly, some of the Convention’s provisions maybe have a role to play in cases that 
fall within the scope of legislative measures of the EU, such as cases within the scope 
of Article 13, on incapacity, of Regulation (EC) No 593/2008 of 17 June 2008108 on the 
law applicable to contractual obligations (hereinafter, Rome I Regulation), or cases re-
lating to torts committed by a vulnerable adult, where the issue arises of the liability of 
the person or institution in charge of their protection, in accordance with Article 15(g) 
of Regulation (EC) No 864/2007 of 11 July 2007109, on the law applicable to non-con-
tractual obligations (hereinafter, Rome II Regulation). However, this does not appear to 
mean that the latter measures are “affected” or “altered” by the Convention within the 
meaning of Article 216(2) TFEU.  

The latter finding may be further illustrated by the following remarks, referring the Eu-
ropean Succession Regulation. According to Article 24(1) of the Regulation, a disposition 
of property upon death, such as a testament, “shall be governed, as regards its admis-
sibility  and  substantive  validity,  by  the  law  which,  under  this  Regulation,  would  have 
been applicable to the succession of the person who made the disposition if he had died 
on the day on which the disposition was made”. Article 26(1)(d) Succession Regulation 
lists among the elements that pertain to substantive validity for the purposes of Article 
24, “the admissibility of representation for the purposes of making a disposition of prop-
erty upon death”. In practice, it is for the lex successionis, as determined by the Euro-
pean  Succession  Regulation,  to  decide  whether  a  disposition  of  property  upon  death 
regarding  a  person  is  admissible  if  done  by  the  representative  of  that  person,  rather 
than the person herself.  

In  principle,  the  above  provision  covers  the  situation  where  a  disposition  of  property 
upon death is made by the representative of a vulnerable adult, e.g., the adult’s attor-
ney under a private mandate. In this case, however, the application of the 2000 Hague 
Convention would have no impact, as such, on the operation of the European Succession 
Regulation. The Hague Convention would indeed determine, inter alia, the law applicable 
to  the  existence,  extent,  modification  and  extinction  of  the  powers  of  representation 
granted by the adult (Article 15), but its provisions are not meant to determine whether 
a  disposition  of  property  upon  death  made  by  the  adult’s  attorney  is  admissible  as  a 

107 It should be stressed that Article 3(2) of the TFEU does not set forth an exhaustive list of grounds on 

which the Union’s external competence may rest. Its purpose is to single out the cases in which the Un-
ion’s external competence is exclusive. As acknowledged by the Court of Justice, “the European Union 
may have an external competence that falls outside the situations laid down in Article 3(2) TFEU”: see 
Case C-600/14, Federal Republic of Germany v Council of the European Union [2017], 
ECLI:EU:C:2017:935, para. 51.  

108 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 

applicable to contractual obligations (Rome I), OJ L 177, 4.7.2008, p. 6–16. 

109 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law 

applicable to non-contractual obligations (Rome II), OJ L 199, 31.7.2007, p. 40–49. 

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matter of succession law: indeed, the Convention, as stated in Article 1(1)(d), does not 
apply to successions. 

(c) The conclusion of the Convention is necessary to achieve the Treaties’ ob-
jectives 

Rather, the view may reasonably be advanced that the (shared) external competence 
of the Union to join the Hague Convention rests on the ground that the conclusion of 
the Convention (i.e., its ratification by the Member States that have not yet done so) 
would be ‘necessary  in order to  achieve,  within the framework  of the  Union’s 
policies, one of the objectives referred to in the Treaties’. 

The roots of this part of Article 216 TFEU are in the case law of the Court of Justice of 
the European Union, specifically in Opinion 1/76.110 In that Opinion, the Court began by 
recalling  that  the  external  competence  of  the  Community,  as  it  was  then,  ‘may  flow 
implicitly’ from the provisions of the Treaties, meaning that ‘whenever Community law 
has created for the institutions of the community powers within its internal system for 
the purpose of attaining a specific objective, the Community has authority to enter into 
the international commitments necessary for the attainment of that objective even in 
the absence of an express provision in that connection’. The Court went on to say that 
the described scenario does not only cover cases in which internal power has already 
been used in  order to adopt measures which come within the attainment of common 
policies.  It  observed  that,  ‘[a]lthough  the  internal  community  measures  are  only 
adopted when the international agreement is concluded and made enforceable …, the 
power to bind the Community vis-a-vis third countries nevertheless flows by implication 
from the provisions of the Treaty creating the internal power and in so far as the par-
ticipation of the  Community in the international agreement is, as here, necessary for 
the attainment of one of the objectives of the community’. 

Two  conditions  must  be  fulfilled  for  the  Union  to  have  the  power  to  conclude  an 
international  agreement  on  this  basis.  The  conclusion  of  the  agreement  must  come 
with the purview of the policies of the Union, and it must appear to be necessary 
to achieve one or more of the objectives referred to in the Treaties. 

There is little doubt that the conclusion of the Hague Convention would fit in the frame-
work of the Union policies, as shaped by Part three of the TFEU. Specifically, the con-
clusion of the Convention would fit in the policies relating to the construction of an area 
of freedom, security and justice, namely those concerning judicial cooperation in civil 
matters. It follows from Article 81(2) TFEU that, in the latter field, the Union may adopt 
measures  ‘aimed  at  ensuring’,  among  others,  the  recognition  of  judgments  and  the 
compatibility  of  the  rules  governing  conflicts  of  laws  and  of  jurisdictions.  The  Hague 
Convention set forth uniform rules that perform precisely those functions: they deal with 
the jurisdiction of courts and administrative authorities to give and modify measures of 
protection, they regulate the law applicable to the protection of adults and set out the 
conditions for the recognition and enforcement of foreign measures of protection. 

The assessment of whether the conclusion of the Hague Convention would be ‘neces-
sary’ to achieve the objectives set out in the Treaties comes in two steps.  

The first step consists in identifying the objectives, among those referred to in the Trea-
ties, that the Convention would serve if it were in force for all the Member States.  

The Convention, it is contended, would make it easier for the Union to ensure the pro-
tection of the fundamental rights of those concerned, in line with Article 6 of the TFEU; 
it would foster the free movement of citizens, consistent with Article 3(2) of the TEU; 
and it would help combat social exclusion and discrimination, while promoting solidarity 

110 Opinion 1/76 of the Court of Justice of 26 April 1977, given pursuant to Article 228(1) of the EEC Treaty 

‘Draft Agreement establishing a European laying-up fund for inland waterway vessels, 
ECLI:EU:C:1977:63.  

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between  generations,  as  required  by  Article  3(3)  of  the  TEU.  The  functioning  of  the 
internal market, it is submitted, would likewise be more effectively and more thoroughly 
secured if the Convention were in force for all Member States.  

The above objectives would benefit from the Convention because the latter, as explained 
throughout  this  report  would  increase  legal  security  in  cross-border  situations  for  all 
those involved in the protection of a vulnerable adult (the adult themselves, their deputy 
or  attorney,  the  parties  to  a  legal  relationship  to  which  the  adult  concerned  is  also  a 
party,  etc.),  and  would  enable  the  relevant  authorities  to  cooperate  more  effectively 
between themselves whenever they are seized of matters touching the personal or prop-
erty interests of one and the same adult. 

The second step consists in determining whether the conclusion of the Hague Conven-
tion would be needed to attain the said objectives.  

Various rulings of the Court of Justice provide guidance regarding the way in which the 
requirement of ‘necessity’ ought to be understood for the purposes of Article 216 TFEU. 
The precise implications of those rulings remains debatable. One key element is whether 
a distinction can be made, within the framework of the agreement concerned, between 
situations that solely affect the EU, on the one hand, and situations that affect a Member 
State of the Union and a third country, on the other. If a clear distinction can be made 
between intra-EU situations and extra-EU situations, then the conclusion of the agree-
ment can hardly be deemed to be ‘necessary’ to attain the objectives of the Treaties. 
Conversely, where purely intra-European situations are not practically  distinguishable 
from extra-EU situations, then the conclusion of the agreement appears ‘necessary’ to 
achieve the pertinent objectives.  

The described approach is exemplified by three rulings of the Court of Justice. All three 
concluded  that  the  Union  had  external  competence  to  conclude  the  agreement  con-
cerned on the ground that the conclusion could considered to be ‘necessary’ to attain 
the relevant Treaty objectives.  

Opinion 1/76, mentioned above,111 concerned the conclusion of an agreement regarding 
inland waterway transport ‘in a geographical region in which transport by inland water-
way is of special importance within the whole network of international transport’, i.e., 
in a scenario where both the common transport policy of the European Community (as 
it was then) and international transport, more generally, were at issue.  

The judgment rendered by the Court on 5  December 2017 in the  COTIF case,112 was 
about the proposed amendment to an agreement designed to establish common rules 
applicable to international transport, including with respect to transport to or from the 
territory  of  a  Member  State,  or  passing  across  the  territory  of  one  or  more  Member 
States, as regards parts of the journey that take place outside EU territory and, gener-
ally, also as regards parts of the journey that take place on EU territory.  

Finally,  Opinion  2/15,  of  16  May  2017,  concerned  the  conclusion  of  the  Free  Trade 
Agreement between the European Union and the Republic of Singapore. The Court re-
sorted to the ‘necessity’ test with respect to the provisions in the latter agreement re-
lating to non-direct foreign investment, a matter for which the external competence of 
the  Union  is  not  provided  for  in  the  Treaties  or  in  a  legislative  act  of  the  Union.  The 
Court held that the conclusion of the agreement was ‘necessary’ to achieve the objec-
tives referred to in the Treaties on the ground that, since ‘the free movement of capital 
and payments between Member States and third States, laid down in Article 63 TFEU, 
is not formally binding on third States, the conclusion of international agreements which 

111 Opinion 1/76 of the Court of Justice of 26 April 1977, given pursuant to Article 228(1) of the EEC Treaty 

‘Draft Agreement establishing a European laying-up fund for inland waterway vessels, 
ECLI:EU:C:1977:63.  

112 Case C-600/14, Federal Republic of Germany v Council of the European Union [2017], 

ECLI:EU:C:2017:935 

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contribute  to  the  establishment  of  such  free  movement  on  a  reciprocal  basis  may  be 
classified as necessary in order to achieve fully such free movement, which is one of the 
objectives […] of the FEU Treaty’.  

The protection  of adults, it is  contended, involves situations where a clear distinction 
between intra-EU and extra-EU situations would hardly make sense. Vulnerable adults 
increasingly move from one country to another, both within the territory of the Union 
and outside of it. The property of a vulnerable adult, for its part, may consist of assets 
located in several States: these, too, may be Member States of the Union or third coun-
tries. A broad range of diverse situations may need to be considered when it comes to 
the international protection of an adult. Since an adult may experience a condition of 
vulnerability for several years, if not decades, situations may well arise where the per-
sonal or property interests of the person concerned move from within  the Union to a 
third country, and vice-versa, several times during the life of the adult concerned.  

Arguably,  the  conclusion  of  the  Hague  Convention  would  make  sure  that  the  above 
scenarios are dealt with under one and the same set of rules, no matter whether (and 
the extent to which) the situation is connected, or becomes connected, to a third coun-
try. The objectives of the Treaties mentioned above would not be thoroughly fulfilled if 
such a unitary basic framework were lacking. 

Practical problems could arise in cases involving a ‘highly-mobile’ vulnerable adult if the 
2000 Hague Convention were in force for some, but not all, Member States. The follo-
wing examples provide an illustration of such problems.  

Example No 1 

As a result of a car accident, Lina – a national of Lithuania living in Prague – suffers 
severe  brain  damage  and  is  no  longer  in  a  position  to  protect  her  interests.  She 
benefits from measures of protection given by the competent Czech courts. The latter 
decide that Lina should be relocated in Zurich, where she would undergo a 12 to 15-
month  long  rehabilitation  treatment  in  an  establishment  where  protection  can  be 
provided. Relocation takes place in accordance with Article 33 of the Convention, since 
Switzerland and the Czech Republic are both parties to the Hague Convention. All ties 
between  Lina  and  the  Czech  Republic  are  severed  as  a  result  of  the  transfer.  The 
rehabilitation  is  partly  successful,  and  the  Swiss  doctors  suggest  that  Lina  be 
transferred to an establishment in Vilnius, where she would enjoy the company of her 
family members before a second rehabilitation treatment in Zurich begins, six months 
later. Since Lithuania is not a party to the Hague Convention, the envisaged transfer 
from Zurich to Vilnius, and then back to Zurich, would not benefit from the provisions 
of the Convention and might turn out to be problematic and time consuming 

Example No 2 

Luigi is an Italian national living in France. He owns assets in France, Germany and 
Italy. He becomes unable to take care of his interests. Giulia, Luigi’s daughter, seizes 
the competent French court with  a  request  for  a measure  of protection. The court, 
which possesses jurisdiction in accordance with Article 5(1) of the Convention, learns 
that Giulia, who lives in Edinburgh, is prepared to undertake her father’s protection, 
and  considers  that,  in  the  circumstances,  a  transfer  of  the  case  to  Scotland  in 
accordance  with  Article  8(2)(e)  of  the  Convention  would  be  in  the  interest  of  Luigi 
(note that the UK, too, is a party to the Convention, albeit only in respect of Scotland).  

As long as the Hague Convention is not in force for Italy, such a move could prove 
problematic. If indeed the case were transferred to Scotland, the measures taken by 
Scottish  courts  would  be  recognised  (and  enforced,  as  the  case  may  be)  in  France 
and in Germany under the Hague Convention, but would not be recognised in Italy, 
for  those  measures  do  not  originate  in  a  country  that  the  Italian  rules  of  private 
international law regard as possessing jurisdiction. Giulia would eventually be able to 

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manage  Luigi’s  assets  located  in  France  and  Germany,  not  those  located  in  Italy. 
Moreover, Italian courts would possess jurisdiction to rule on Luigi’s protection on the 
ground of his nationality, and might appoint on this basis a person other than Giulia 
as his administrator.  

All in all, the above analysis would seem to suggest that an effective protection of the 
fundamental rights of those involved and an appropriate management of cross-border 
situations within the internal market and the area of freedom, security and justice would 
hardly be secured if the Member States were not also parties to the Hague Convention. 

A finding that the conclusion of the Convention is necessary in order to attain the ob-
jectives of the Treaties, for the purposes of Article 216 TFEU, could arguably rest on the 
above arguments. 

4.2.1.3  Added value of the ratification 

Mutual recognition and enforcement of decision are based on the principle of reciprocity, 
and  require  a  uniform  and  systematic  application  of  common  rules.  The  diversity  of 
approaches  taken  in  the  Member  States  legal  systems,  and  the  solutions  adopted  in 
Member States such as the Netherlands (analogous application of the 2000 Hague Con-
vention) or Romania (in which inspiration is drawn from the Convention without its direct 
application) do not allow for such reciprocity.  

Therefore, the question is not whether action should be taken, but what form such action 
should take and who should take such action. The exercise of the Union’s external com-
petence with a view to ensuring the ratification of the 2000 Hague Convention involves 
basically  the  same process  followed for the 1996 Hague  Children Convention, 
under Council Decision 2008/431/EC of 5 June 2008113. Article 218 TFEU would apply. 
Unanimity would not be required, pursuant to a combined reading of Article 218(8) and 
Article 81 TFEU, since the protection of adults does not belong as such to family law. 

Key findings: 

•  Stakeholders, practitioners and academics largely agree that a broad ratification 
of the 2000 Hague Convention would significantly enhance the protection of vul-
nerable adults across the Union. In general, they consider that this would address 
the needs mentioned above. 

•  A general ratification of the 2000 Hague Convention was ranked as the preferred 
option for facilitating cross-border cooperation by the respondents to the survey 
carried out for this study. All MSCAs and legal practitioner survey respondents 
believed that a general ratification of the 2000 Hague Convention by all EU Mem-
ber States would facilitate cross-border cooperation. Stakeholders believed this 
would  lead  to  a  greater  harmonisation  of  jurisdiction  norms  and  rules  on  the 
applicable law, in turn greatly simplifying procedures, ensuring better coopera-
tion among all involved parties, increased legal certainty, and ultimately leading 
to a better protection of vulnerable adults. Several stakeholders highlighted that 
a general  ratification  of the  Hague Convention is all the more important given 
the increasing mobility of EU citizens.  

•  The  intervention  of  the  EU  to  ensure  ratification  is  legally  feasible.  The  Union 
cannot itself become a party to the 2000 Hague Convention, as Articles 53 and 
54  of  the  Convention  make  it  clear  that  the  latter  is  only  open  to  sovereign 
States, not to international organisations. Therefore, for the Convention to form 
part of the EU acquis, the EU would need to authorise (and in fact oblige) the 
Member States to ratify or accede to the agreement in question ‘in the interest 
of  the  Union’.  Such  intervention  would  be  in  line  with  EU  law,  insofar  as  the 
conclusion of the 2000 Hague Convention would fall within the  non-exclusive 

113 OJ L 151, 11.6.2008, p. 36–48. 

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Study on the cross-border legal protection of vulnerable adults in the EU 

external  competence  of  the  Union.  Indeed,  in  accordance  with  Article  216 
TFEU, the conclusion of the Convention could be regarded as “necessary in order 
to achieve, within the framework  of the Union’s policies,  one  of the objectives 
referred to in the Treaties”, and in this case, the objective of judicial cooperation 
in civil matters. Different views have been expressed in literature as regards re 
interpretation of the latter provision. The case law of the Court of Justice, it is 
argued, does not appear to preclude the above finding.  

•  Mutual  recognition  and  enforcement  of  decision  are  based  on  the  principle  of 
reciprocity, and require a uniform and systematic application of common rules. 
The ratification of the Convention by all Member States would either fix or sig-
nificantly mitigate many of the shortcomings mentioned above, as well as ensure 
such reciprocity. 

•  The  exercise  of  the  Union’s  external  competence  with  a  view  to  ensuring  the 
ratification  of the 2000  Hague  Convention involves basically the same  process 
followed  for  the  1996  Hague  Children  Convention,  under  Council  Decision 
2008/431/EC  of  5  June  2008.  Article  218  TFEU  would  apply.  Unanimity  would 
not be required, pursuant to a combined reading of Article 218(8) and Article 81 
TFEU, since the protection of adults does not belong as such to family law. 

4.2.2  Adoption of an EU instrument complementing the 2000 Hague Convention  

4.2.2.1  Need for a complementary EU instrument 

Overall, the Hague Convention appears to work very well in practice. Its practical oper-
ation, however, could still be improved in some respects. Such improvements would be 
especially beneficial in the relations between the Member States of the EU, given the 
size and intensity of the cross-border mobility of individuals and assets in Europe, com-
pared to other regions of the world. 

Admittedly, some improvements may come from discussion within the Hague Confer-
ence on Private International Law, by way of clarifications through the Practical Hand-
book on the Convention currently under preparation, or through such recommendations 
as  may  be  adopted  on  the  occasion  of  the  2022  Special  Commission  devoted  to  the 
Convention114. This is true, in particular, of improvements consisting in a better under-
standing of the notions employed by the Convention (e.g., the habitual residence of a 
vulnerable  adult,  transmission  of  information  and  cooperation  mechanisms  in  case  of 
change in the residence of the vulnerable adult) and the functioning of its provisions.  

That said, some improvements cannot be brought about otherwise than through legis-
lation, based on the (internal) competence of the EU under Article 81 TFEU. Regulation 
at EU level would among other things result in the possibility to raise awareness and 
train  practitioners  on  the  EU  instrument  using  existing  EU  tools  (e.g.,  the  European 
Judicial Network, the European Judicial Training Network, the e-Justice portal). It would 
also enable enforcement at EU level, with the infringement procedure, in case of breach 
of its obligations by a Member State. 

For these reasons, the enactment of a legislative measure regarding the inter-
national  protection  of  adults  should  complement  the  Hague  Convention,  and 
not serve as a substitute to it, for the reasons presented under Section 4.2.1.3 above. 
Accordingly, if indeed a legislative measure were enacted, its operation would arguably 
need to be delayed for as long as the Hague Convention is not in force for all Member 
States (or limited to such Member States as are already bound by the Convention). 

It is important to note that the adoption of an EU legislative measure  would not in-
volve  a  violation  by  the  Member  States  of  the  international  obligations  they 
undertook (or will have undertaken, by the time the measure enters into force) under 

114 See Annex VII- interview with the Permanent Bureau of the Hague Convention for more information on 

this point.  

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the 2000 Hague Convention. The Hague Convention does not prevent Contracting States 
from furthering their cooperation beyond the provisions of the Convention itself or even 
departing  from  its  rules  in  their  mutual  relations.  The  relevant  provisions  are  Article 
49(2) and Article 49(3) of the Convention. Both refer to the relationship between the 
Hague Convention and other agreements or “international instruments”, including, as 
stated in Article 49(4), “uniform laws based on special ties of a regional nature”. The 
latter formula, though initially meant as a reference to cooperation among Nordic States, 
also applies, it is believed, to legislative measures adopted by the European Union. Ac-
cording to Article 49(2), the Hague Convention does not affect the possibility for one or 
more  Contracting  States  to  conclude  agreements  or  take  part  in  regional  rules  which 
contain,  “in  respect  of  adults  habitually  resident  in  any  of  the  States  Parties  to  such 
agreements”, or in any of the States bound to such regional rules, “provisions on mat-
ters governed by [the Hague] Convention”. Article 49(3) adds that the said agreements 
or regional rules “do not affect, in the relationship of such States with other Contracting 
States, the application  of the provisions of [the Hague] Convention”.  In practice, this 
means that by applying a legislative measure adopted by the Union to deal with issues 
within the scope of the Hague Convention, the Member States would not be acting in 
breach of the Hague Convention insofar as the measure in question applies to a person 
whose habitual residence, at the material time, is in a Member State. In addition to that, 
it appears that the Member States would not violate the Hague Convention if they ap-
plied an EU legislative measure, instead of the Hague Convention, to the recognition in 
a Member State of a measure of protection given in another Member State, or to pro-
ceedings for the declaration of enforceability of such a measure. Arguably, the same is 
true,  if  the  authorities  of  a  Member  State  declined  their  jurisdiction  in  favour  of  the 
courts  of another Member State pursuant to that regulation,  or if they asserted their 
jurisdiction, based on such a regulation, in a situation where they would normally need 
to defer, under the Hague Convention, to the jurisdiction of the courts of another Mem-
ber State. 

Undoubtedly, for particular issues, it may prove difficult to draw a clear and workable 
distinction between situations that the Union may regulate without hindering the oper-
ation of the Hague Convention and situations where the Union’s legislation would instead 
frustrate  the  functioning  of  the  Convention.  This  is  true,  in  particular,  of  the  issue  of 
applicable law, which is universal in nature and does not rest on reciprocity. Similarly, 
if different rules apply regarding the obligations of the competent authorities under the 
two instruments, this could cause interpretation issues, as has been seen with regard 
to the Maintenance Convention and the Maintenance Regulation. 

4.2.2.2  Form of the instrument 

The  question  to  then  consider  is  the  form  that  an  EU  instrument  would  take,  and  in 
particular, whether it should be a legislative or non-legislative (soft law) measure.  

A non-legislative action or soft-law action would support the protection of the rights of 
vulnerable persons through, for example, monitoring and evaluation, training and good 
practice examples dissemination, but its impact would be rather low compared to 
the problems encountered and faced in practice. “Soft law” refers to international 
norms  that  are  deliberately  non-binding  in  character,  but  still  have  legal  relevance, 
located “in the twilight between law and politics.”115 Therefore, although soft law options 
would in and of themselves be positive measures, they would probably be unsatisfactory 
to solve the issues identified in this report. To fully appreciate the disadvantages of soft 
law in the field of private international law, it is also necessary to analyze the advantages 
of possible hard law options.  

•  Hard law instruments allow states to commit themselves more credibly to inter-
national agreements. They ensure that state commitments are regarded as more 
credible, because they increase the cost of reneging, whether on account of legal 

115 D. Thürer, “Soft Law”, in: R. Bernhardt (ed.), Encyclopaedia of Public International Law, Elsevier: Am-

sterdam 2000, Volume 4, p. 452-454. 

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sanctions or on account of the costs to a state’s reputation where it is found to 
have violated its legal commitments.116  

•  Hard-law instruments are more credible because they can have direct legal ef-
fects  in  national  jurisdictions  (“self-executing”),  or  they  can  require  domestic 
legal  enactment.  Where  treaty  obligations  are  implemented  through  domestic 
legislation, they create new tools that mobilize domestic actors, increasing the 
audience  costs  of  a  violation  and  thus  making  their  commitments  more  credi-
ble.117 

•  Hard-law instruments also provide better options for the long term, in providing 
routes  for  interpretation  and  implementation  monitoring.  The  enforcement  of 
such  commitments  through  dispute-settlement  bodies,  such  as  courts,  is  also 
advantageous.118 

Nevertheless, defenders of soft law instruments argue that such instruments offer sig-
nificant  offsetting  advantages  over  hard  law  alternatives.  They  find,  in  particular, 
that:119 

•  Soft-law  instruments  are  easier  and  less  costly  to  negotiate.  Hard  law  options 
entail significant costs, whilst also creating formal commitments that can affect 
the behaviour of States. The idea has been proffered that states are less willing 
to agree to impose legally binding commitments due to the implications of state 
budgets,  and  therefore  all  more  willing  to  negotiate  fiercely  in  achieving  such 
hard law options.120 

•  Additionally,  hard-law  agreements  can  be  more  difficult  to  adapt  to  changing 
circumstances,121 as it oftentimes presupposes a  fixed  condition when actually 
the legal field requires constant adjustment.122 

•  Soft-law instruments allow states to be more ambitious and engage in “deeper” 

cooperation than they would if they had to worry about enforcement.  

•  Soft-law instruments cope better with diversity.  
•  Soft-law instruments are directly available to non-state actors, including inter-
national  secretariats,  state  administrative  agencies,  sub-state  public  officials, 
and business associations and nongovernmental organizations (NGOs).123  

With respect to the field of private international law, solutions can only realistically 
be achieved through hard-law options as the flexibility afforded to States by virtue 
of soft-law mechanisms (which is the very same advantage of such instruments) is not 
suited  to  the  field,  especially  when  dealing  with  international  procedural  law  aspects 
(i.e.,  jurisdiction  and  recognition  and  enforcement  of  judgments).124  Nevertheless, 
although soft law could lead to improvement as regards information dissemination, it 
would not lead to solutions being proffered for to address the permanent issues listed 

116 K.W. Abbott and D. Snidal, “Hard and Soft Law in International Governance”, (2000) 54 International Or-

ganisations p. 421 at p. 428 . 

117 K.W. Abbott and D. Snidal, ibid, p. 433.  
118 K.W. Abbott and D. Snidal, ibid, p. 427. 
119 G.C. Shaffer and M.A. Pollack, “Hard vs. soft law alternatives, complements and antagonists in interna-

tional governance”, (2010) Minnesota Law Review p. 706. 

120 K.W. Abbott and D. Snidal, ibid, p. 434. 
121 K.W. Abbott and D. Snidal, ibid, p. 433. 
122 See, for example, G. de Búrca & J. Scott, Introduction, (2007) 13 Columbia Journal of European Law p. 
513 (arguing that a lack of fixed conditions “necessitates a degree of experimentation with different 
kinds of public policy-making strategies”). 

123 For good discussions on the purported strengths of soft law, see, for example, J.J. Kirton & M.J. Trebil-
cock, ‘Introduction’, in: J.J. Kirton and M.J. Trebilcock (eds.), Hard Choices, Soft law: Voluntary Stand-
ards in Global Trade, Environment and Social Governance, 2004, p. 3, at 9; K.W. Abbott and D. Snidal, 
ibid, at 434–54; F. Sindico, Soft Law and the Elusive Quest for Sustainable Global Governance, (2006) 
19 Leiden Journal of International Law, p. 829, at 832; See also H. Hillgenberg, A Fresh Look at Soft 
Law, (1999) 10 European Journal of International Law, p. 499, at 501 and 504. 

124 A position that is also supported in the field of civil procedure in general, see, EPRS, Europeanisation of 
civil procedure. Towards common minimum standards?, European Parliamentary Research Service: 
Brussels 2015, p. 12  

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in  this  report.  For  example,  the  abolition  of  the  barriers  to  the  recognition  and 
enforcement of powers of representation would not be solved with soft-law instruments. 
The majority of legal systems require some form of reciprocity for the mutual recognition 
of decisions.125 A soft-law instrument would not solve this issue, as reciprocity requires 
an  international  legal  obligation,  which  can  only  be  achieved  by  means  of  hard-  law 
instruments. Although a recent decision of the Dutch Supreme Court would appear to 
suggest that mutual recognition can also be achieved without ratification of the 2000 
Hague  Convention126,  this  is  certainly  not  the  principle  of  private  international  law 
applied in the vast majority of countries around the world, as has also been noted in 
Dutch literature criticising this decision127. Therefore, the only possible solutions would 
be  with  the  introduction  of  an  EU  hard-law  instrument  in  the  form  of  a  directive  or 
regulation.  

The gaps and problems identified in this report require a strictly defined and harmonised 
set  of  rules  of  private  international  law.  Rules  on  the  cross-border  recognition  and 
enforcement of judgments will simply not work if these rules are to be implemented on 
a voluntary basis. The rules required must, therefore, constitute a set of precise, 
unconditional  provisions  that  are  directly  and  uniformly  applicable  in  a 
mandatory manner and, by their very nature, require no action by the Member 
States  to  transpose  them  into  national  law.  As  has  been  seen  in  other  areas  of 
private international law, the use of Regulations has been highly successful to achieve 
this  aim.  In  the  field  of  family  law,  reference  can  be  made  to  the  Brussels  IIa 
Regulation128,  Rome  II  Regulation,  Maintenance  Regulation129,  European  Succession 
Regulation. In the field of civil and commercial matters, one can point to the Brussels I 
(recast)  Regulation130,  the  Insolvency  Regulation131,  Rome  I  Regulation,  Rome  II 
Regulation, the Order for Payment Regulation132, Small Claims Procedure Regulation133, 
European Order Uncontested Claims Regulation134, Service of Documents Regulation135, 
and Evidence Regulation136.  

125 See J. Carlos Martinez, “Recognizing and Enforcing Foreign Nation Judgments: The United States and Eu-
rope Compared and Contrasted”, (1995) 4 Journal of Transnational Law and Policy p. 49 and Y. Zeyna-
lova, “The law on recognition and enforcement of foreign judgments: is it broken and how do we fix it?”, 
(2013) 31 Berkeley Journal of International Law p. 151.  

126 Dutch Supreme Court, 2nd February 2018, ECLI:NL:HR:2018:147, §3.3.4. 
127 See for example the critical annotation of this decision, by T. de Boer, Nederlandse Jurisprudentie, 

2018/409, §4. 

128 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition 
and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repeal-
ing Regulation (EC) No 1347/2000, OJ L 338, 23.12.2003, p. 1–29. 

129 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and 

enforcement of decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 
10.1.2009, p. 1–79. 

130 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on 
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 
351, 20.12.2012, p. 1–32. 

131 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency 

proceedings, OJ L 141, 5.6.2015, p. 19–72. 

132 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 cre-

ating a European order for payment procedure, OJ L 399, 30.12.2006, p. 1–32. 

133 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing 

a European Small Claims Procedure, OJ L 199, 31.7.2007, p. 1–22. 

134 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a 

European Enforcement Order for uncontested claims, OJ L 143, 30.4.2004, p. 15–39. 

135 Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on 
the service in the Member States of judicial and extrajudicial documents in civil or commercial matters 
(service of documents), and repealing Council Regulation (EC) No 1348/2000, OJ L 324, 10.12.2007, p. 
79–120. 

136 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member 

States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1–24. 

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4.2.2.3  Content of the instrument 

General approach 

The  actual  content  of  the  EU  instrument  should  then  be  considered.  One  option  that 
could be considered is the creation of a set of rules that are virtually identical to 
the Convention. This option has been used in a number of different settings, but has 
led to complicated problems regarding concurrence, and interpretation. For example, in 
the field of maintenance, both the Maintenance Regulation and the Hague Maintenance 
Convention  2007  establish  a  system  of  Central  Authorities.  The  provisions  of 
administrative cooperation are contained in Chapter VII of the Maintenance Regulation 
and  Chapters  II  and  III  of  the  Hague  Maintenance  Convention  2007.  The  tasks  and 
duties are enumerated in both of these instruments. Although the two instruments are 
virtually  identical,  a  number  of  small  differences  are  evident.  Questions  can  then  be 
posed  whether  these  differences  are  intentional,  thus  requiring  different  practical 
application, or whether these differences are unintentional, in which case they should 
be ignored. Such unintentional interpretational issues should, however be avoided.  

A similar problem has arisen in the context of the jurisdictional rules contained in the 
Brussels IIa Regulation and the Hague Child Protection Convention 1996. Although both 
instruments contain rules of direct jurisdiction, these rules are different both in terms 
of principle (e.g. the Brussels IIa Regulation departs from the principle of perpetuatio 
fori,  whereas  the  Hague  Child  Protection  Convention  1996  does  not),  as  well  as  the 
actual  grounds  of  jurisdiction  (e.g.  the  Brussels  IIa  provides  for  prorogation  in 
procedures  not  ancillary  to  divorce  proceedings,  whereas  the  Hague  Child  Protection 
Convention  1996  only  provides  for  prorogation  in  ancillary  matters).  It  is,  therefore, 
essential in any given case to know which set of jurisdictional rules apply. In practice, 
even if two systems are implemented alongside one another, the interaction between 
these systems remains difficult. Take for example the difference between Article 8(1) of 
the  Brussel  IIa  Regulation  and  Article  5(1)  of  the  1996  Hague  Child  Protection 
Convention. If the child has an habitual residence in a 1996 Hague Convention State, it 
would be considered under the Convention that jurisdiction ceases if the child changes 
its habitual residence,  whereas if the  child moves to an EU  Member  State, that  state 
would consider that the jurisdiction remains with the original state on the basis of the 
perpetuatio fori principle in accordance with the Regulation.  

It  is,  therefore,  arguable  that  such  an  approach  would  not  be  advisable  and 
should  only  be  used  as  a  last  resort.  If  the  rules  contained  in  the  2000  Hague 
Convention  are  suitable,  then  it  would  be  better  to  either  refer  to  those  rules  (e.g. 
solution adopted in Article 15 of the Maintenance Regulation, incorporating the Hague 
Maintenance Protocol 2007), or incorporate them into any future EU instrument (e.g. 
solution adopted in Article 27 of the European Succession Regulation in conjunction with 
Article 75(1) of the European  Succession Regulation and the 1961 Hague Convention 
on Apostille).  

If  the  rules  contained  in  the  2000  Hague  Convention  do  not  go  far  enough,  then  an 
alternative solution would be to provide additional, complementary rules in an 
EU  instrument.  Such  a  solution  has  also  previously  been  adopted  in  the  field  of 
international  child  abduction.  Article  11  of  the  Brussels  IIa  Regulation  provides  a 
complementary  set  of  provisions  in  cases  of  intra-EU  child  abduction.  As  the  mutual 
level  of  trust  is  higher  within  the  EU,  the  exceptions  to  the  return  of  a  child  can  be 
applied more strictly in such circumstances, thus ensuring that the basic principles of 
the Convention (immediate return of the child) can be applied in more cases.206 In this 
way, the legal basis for the return order remains that of the Hague Abduction Convention 
1980, whilst in intra-EU cases, these provisions are supplemented by the provisions of 
Article 11 of the Brussels IIa Regulation. Such a solution could be preferable in the field 
of the central authority co-operation for example. In this way, the basic provisions for 
the central authority co-operation and the applicable framework could remain those laid 
down by the Hague Convention, however these rules could be supplemented with added 
(or perhaps more elaborated) tasks and responsibilities) in a future EU instrument.  

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Specific provisions 

Choice of court by the adult 

It has been suggested in literature, notably by the ELI Report mentioned above, that 
the cross-border enforcement of private mandates would be easier and more effective 
if the adult concerned were enabled, subject to appropriate safeguards, to  choose in 
advance, at a time when they are capable, the Member State whose courts are 
to have jurisdiction over their protection; this should include the power to supervise 
guardians, persons appointed by a court or by the adult concerned (by way of a power 
of attorney), or having power ex lege to take care of the adult’s affairs. 

Under the Hague Convention, a choice of court by the adult does not, as such, 
confer jurisdiction on the chosen court. Article 8 of the Hague Convention provides 
that the authorities of a State having jurisdiction under Articles 5 or 6, “if they consider 
that  such  is  in  the  interests  of  the  adult”,  may  request  the  authorities  of  another 
Contracting State “to take measures for the protection of the person or property of the 
adult”, with respect to all or some aspects of such protection. The Contracting States 
whose authorities may be addressed for that purpose are, among others, those of “the 
State  whose  authorities  have  been  chosen  in  writing  by  the  adult  to  take  measures 
directed to his or her protection”. A transfer of jurisdiction under the latter provision is 
by  definition  outside  the  control  of  the  adult  in  question.  It  is,  in  fact,  for  the  court 
possessing jurisdiction to assess in its discretion whether to uphold the choice, or not. 
Should the court consider that jurisdiction ought in fact to be transferred to the chosen 
court,  the  transfer  will  only  become  effective,  as  it  arises  from  Article  8(3),  with  the 
consent of the chosen court. 

Based  on  the  survey  conducted  for  the  purposes  of  the  present  report, 
stakeholders do not  seem to be especially concerned  by this state of  affairs. 
Still, the picture is not satisfactory, especially if one considers the key role played by 
self-determination in this area. Actually, it is hard to see why self-determination should 
enjoy  only  indirect  recognition  when  it  comes  to  an  adult’s  protection,  whereas  self-
determination is fully (or more fully) recognised in other areas, such as in matters of 
succession or as regards maintenance obligations. Providing the adult concerned with 
the  right  to  make  choices  relevant  to  his  or  her  interests  translates  the  principle 
according to which people with disabilities ought to be empowered to enjoy their rights 
on an equal basis with others. This is a key objective of the UNCRPD and the main focus 
of the European Disability Strategy 2010–2020, adopted by the European Commission 
(COM(2010) 636 final). 

Furthermore,  as  regards  the  financial  interests  of  the  adults  concerned,  one  should 
consider  that,  whilst  a  succession  upon  death  or  family  support  are  subject  to  the 
interests of various parties that may conflict, it is, generally, solely the interests of the 
adult  concerned  that  are  paramount  in  dealing  with  their  affairs.  Therefore,  although 
various other parties may have conflicting ideas of what is in the “best interests” of the 
adult concerned, this is no different to the principle that the interests of the child are a 
paramount consideration in cases involving them, but that the persons involved in the 
child’s life may well have different views as to what is in the child’s best interests.  

Based on the foregoing, it is considered that Union legislation could be enacted to 
ensure  that,  subject  to  suitable  safeguards,  the  adults  concerned  enjoy  a 
significant  amount  of  autonomy  and  be  able  to  designate  the  court  with 
jurisdiction. It is acknowledged that party autonomy in this field should be subject to 
limitations, notably in order to prevent abuse. As a consequence, choice of court should 
be admitted in situations where it would clearly advance the fundamental rights of the 
adult concerned. 

This occurs, in particular, where, by virtue of the choice, jurisdiction over the protection 
of  the  adult  is  conferred  on  the  authorities  of  the  State  whose  law  is  applicable  to  a 
private mandate made by the adult. Convergence between forum and ius has a two-fold 

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advantage.  To  begin  with,  it  enhances  legal  certainty,  for  the  will  of  the  adult,  as 
expressed in a private mandate, will be enforced by authorities which are, by definition, 
familiar with the law governing the substance of the mandate itself, and are, as such, 
particularly  well  placed  to  realise,  in  due  course,  precisely  the  same  effects  that  the 
adult concerned had envisaged. Secondly, where a private mandate is administered and 
enforced by the courts of the State whose rules govern the substance of the mandate 
itself,  the  chances  are  high  that  those  courts  will  discharge  their  duties  rapidly  and 
efficiently, thereby enhancing the effectiveness of the protection provided to the adult.  

The  above  advantage  would  not  be  achieved,  at  least  not  systematically,  absent  a 
provision on choice of court. Under the combined operation of Article 5 and 15 of the 
Hague Convention, a private mandate governed by the law of country X may end up 
being dealt with by the authorities of country Y. In fact, Article 5 confers jurisdiction on 
the courts of the Contracting State where the adult concerned is habitually resident at 
the time where his or her protection is at issue, whereas Article 15 provides that the 
powers granted under a private mandate are governed by the law of the State of the 
adult’s habitual residence at the time of the agreement or act, unless one of the following 
laws has been designated: a State of which the adult is a national; the State of a former 
habitual residence of the adult; a State in which property of the adult is located, with 
respect to that property. Thus, if the adult in question entered into a private mandate 
when he or she was habitually resident in country X, but the issue of his or her protection 
under the mandate arises at a time when he or she is habitually resident in country Y, 
only  the  authorities  of  the  latter  country  will  be  entitled,  pursuant  to  the  Hague 
Convention, to take measures for the protection of the adult in question, including such 
measures as may be necessary to bring the mandate into effect through registration or 
confirmation, or to adapt the powers granted by the adult to any supervening need or 
circumstance. 

In the end, choice of court should be possible where powers of representation have been 
granted by an adult to be exercised when such adult is not in a position to protect his 
or  her  interests.  The  courts  that  the  adult  should  be  able  to  choose  are  those  of  the 
Member State whose law is applicable pursuant to Article 15 of the Hague Convention. 
The provision should come with requirements as to form. Its operation would be limited 
to  the  protection  of  adults  who,  at  the  time  the  authority  is  seized,  are  habitually 
resident in a Member State. Such a choice of court clause could operate easily within 
any  future  EU  instrument,  even  if  the  EU  instrument  itself  was  only  to  refer  to  the 
jurisdictional rules provided for in the 2000 Hague Convention. In a similar fashion to 
the interaction between the Brussels IIa Regulation and the 1980 Hague Child Abduction 
Convention, the EU regulation could refer to the applicability of the Hague instrument, 
whilst  at  the  same  time  supplementing  these  rules  with  additional  provisions.  In  the 
case of the interaction between a future EU instrument in the field of vulnerable adults 
and the 2000 Hague Convention, the supplemental provisions could be in the form of 
providing the possibility to create a choice of court clause. In the absence of a choice of 
court clause, one would then fall back on the general jurisdictional provisions laid down 
in the 2000 Hague Convention.  

An EU certificate of powers of representation 

Both MSCAs and legal practitioners were asked whether they believe the creation of a 
European certificate of representation, i.e. a standard certificate providing evidence of 
the powers conferred on the person(s) charged with representing a vulnerable adult by 
the  adult  themselves  or  by  a  competent  authority,  would  be  beneficial  for  the  cross-
border protection of vulnerable adults. Out of 30 legal practitioner respondents, 70 
% answered positively while 30 % answered negatively. 

Among those that responded positively, four stated that a European certificate of rep-
resentation would create standardisation, which would facilitate cross-border cases and 
lead to speedier procedures. One practitioner argued that the certificate should be de-
signed as an optional instrument (similar to the European Succession Regulation) and 

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that  it  would  be  a  useful  additional  instrument  to  present  to  authorities  or  banks.  A 
judge argued that the certificate is not enough if it cannot be modified or jurisdiction 
cannot  be  clearly  established  when  an  ancillary  matter  must  be  judged.  Five  MSCAs 
believed the creation of a certificate would be beneficial as it could contribute to uni-
formity and reduce translation costs. One argued that the certificate should be accom-
panied by the necessary regulation for its effectiveness. Two MSCAs did not provide a 
position as they believe it should be subject to further consideration. One MSCA believed 
that a European certificate of representation would need to be very detailed with respect 
to the scope of representation, which may differ greatly between Member States and 
that it should not lead to a lowering of the current standards for legal representation in 
certain Member States. The MSCA believed that it would  require common  conflict-of-
laws rules, as the content of such a certificate would need to be based on a (substantive 
national) legal framework. According to the MSCA, such a process would require national 
legislators to implement stark changes in their laws but would not be in the interest of 
the  persons  concerned,  as  most  cases  of  representation  do  not  pose  a  cross-border 
implication. In addition, the MSCA argues that the impact which the Rome I and Rome 
II Regulations already have in this context should be examined carefully. For this MSCA, 
harmonised  conflict-of-law  rules  are  a  necessary  basis  for  any  possibility  for  such  a 
certificate, which could be achieved notably through a general ratification of the 2000 
Hague Convention by all Member States. 

Among the respondents that answered  negatively,  four argue that the creation  of a 
standard European certificate of representation could strongly undermine the principle 
of freedom of choice and self-determination of the vulnerable adult. According to these 
respondents, the field of protection of vulnerable adults is too sensitive to be subject to 
a standardised form, as a key element of protection is preserving a tailor-made answer 
of  the  vulnerable  adult’s  will  and  preferences,  in  accordance  with  Article  12  of  the 
UNCRPD.  The  criticism  would  seem  to  rest  on  a  misunderstanding.  The  purpose  of  a 
certificate of powers of representation is merely to make it easier for the adult’s attorney 
or administrator to provide evidence of his or her powers in a country other than the 
country where such powers were granted. The certificate would not undermine the self-
determination of the adult for the simple reason that it would not affect, as such, the 
scope of the adult’s autonomy or the manner in which the adult’s autonomy would need 
to be exercised. A certificate would only be issued after the powers have been conferred, 
and would do no more than providing standardised information as regards the extent 
and intended conditions of operation of the powers granted. A standard certificate would 
accordingly not undermine the self determination of the adult concerned, just like the 
European Certificate of Succession does not undermine testamentary freedom.  

An  additional  two  practitioners  argued  that  it  would  make  more  sense  to  harmonise 
rules than create a European certificate. Another argument raised by some stakeholders 
is that the EU certificate would merely duplicate the certificate issued together with the 
decision. The former objection seems to disregard the fact that the EU lacks a general 
competence  to  harmonise  the  substantive  law  of  the  protection  of  adults.  The  latter 
would seem to rest on the understanding that a European certificate would correspond, 
in terms of content and legal effects, to a Certificate issued in accordance with Article 
38 of the Convention. In fact, that is not necessarily the case. A European certificate 
could  and  should  do  more  than  an  Article  38  Certificate.  As  explained  below  in  more 
detail, the model for a European certificate would be the European Certificate of Suc-
cession, which is by far more elaborate than an Article 38 Certificate.  

Finally,  the  cross-border  transportability  of  powers  conferred  under  a  judicial  or 
administrative measure of protection or under a private mandate represents one of the 
main concerns surrounding the operation of the Hague Convention. This is confirmed, 
inter alia, by the responses of States to the questionnaire prepared by the Permanent 
Bureau in preparation for the Special Commission of 2022, mentioned above, and from 
the replies collected through the survey circulated for the purposes of this report.  

The certificate provided for by Article 38 of the 2000 Hague Convention is only 

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seldom  used.  Whilst  certificates  under  Article  38  of  the  Hague  Convention  may  be 
available,  their  utility  is  somewhat  restricted.  The  State  with  jurisdiction  is  under  no 
obligation to produce such a certificate. Furthermore, the latter certificates produce a 
presumption of the validity of the limited matters stated, but no further binding effects. 
Article 38 Certificates are not in multilingual format and there is considerable doubt as 
to whether they can validly be produced unless a private mandate has been subject to 
a form of judicial confirmation. 

The European Succession Regulation provides several examples that could serve 
as inspiration for any future European instrument in the field of vulnerable adults. One 
of  the  areas  in  which  the  two  fields  display  similarities  is  with  respect  to  the  free 
circulation of documents attesting the scope and content of the rights of those concerned 
(e.g., the deceased’s heirs and legatees, in the case of succession; the administrator or 
the grantee of a private mandate, as regards the protection of adults).  

The manifest advantages of the European Certificate of Succession in the Union and the 
manner  in  which  they  have  made  easier  the  administration  of  cross  border  estates, 
clearly demonstrate the value that the existence of a European Certificate of Powers of 
Representation, to be created by means of EU legislation, would bring to reducing cross-
border discrimination against vulnerable adults in the Union. In addition, the use of an 
ECPR can ensure the protection of third parties who rely on it. 

The  provisions  that  deal  with  the  European  Certificate  of  Succession  in  the  European 
Succession Regulation could serve as a model to regulate the issuance and effects of 
such a European Certificate of Powers of Representation. 

The proposed European Certificate would not take the place of national certificates (if 
any) which may still be issued in the Member States. Rather the European Certificate 
would represent a sort of development of the Certificate provided for under Article 
38 of the Hague Convention. It would in fact be an Article 38 Certificate with extra 
effects (the latter will only be relied upon in the Member States).  

Steps in that direction were welcomed by all those interviewed for this report, including 
the central authorities. All interviewees noted that standard forms would aim to improve 
transparency  and  mutual  trust,  provide  for  more  efficient  solutions  to  cross-border 
problems and at the same time would reduce costs in cross-border litigious situations, 
as well as extra-judicial settings. Such a form could gain inspiration from the standard 
forms that are also used in other Regulations such as the Brussels IIa and Maintenance 
Regulations. Furthermore, the aim of the certificate would be to create a document that 
could  be  used  outside  of  judicial  proceedings,  in  a  similar  fashion  to  the  European 
Successions Certificate. It would consist in a single certificate, encompassing the article 
38  certificate,  to  ensure  simplicity.  Such  forms  would  assist  in  the  cross-border 
recognition of documentation, but would also simplify the entire field for citizens across 
the European Union. A citizen living in Latvia would be able to use the standard form to 
draft a power of attorney, which could then be recognised and enforced in all other EU 
Member States. The form itself would be easily recognisable because citizens in other 
EU Member States would use the same form.  

Similar  steps  have  also  been  taken  outside  of  the  field  of  inheritance.  The  recent 
developments  in  the  field  of maintenance  could  also  serve  as  inspiration  for  the 
future action in this field. In 2007, both the European Union and the Hague Conference 
for Private International Law drafted standard forms for use in the field of cross-border 
recovery of maintenance. Most of the forms in the 2007 Hague Maintenance Convention 
are, however, optional in nature, whereas the European forms are compulsory.  

Different recognition regimes  

As noted earlier in this report, the recognition regime provided for under the 2000 
Hague  Convention  is  not  sufficient  for  the  EU  context.  The  recognition  regime 

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provides for multiple grounds for non-recognition and could be removed within the EU 
context  (in  a  similar  fashion  to  the  grounds  for  recognition  in  the  Maintenance 
Regulation, as compared to the Hague Maintenance Convention 2007).  

Furthermore, the requirement to obtain a declaration of enforcement under the Hague 
Convention does not appear to be necessary within the EU context, as is already the 
case for decisions within the scope of the Maintenance Regulation (in cases where the 
Hague Protocol applies) and the Brussels I (recast) Regulation, inter alia. Therefore, it 
would be advisable to create a separate regime for the enforcement of measures 
originating  in  a  Member  State,  and  apply  the  2000  Hague  Convention  to 
measures emanating from contracting States other than EU Member States.  

Should exequatur be maintained, it would be crucial to clarify in which circumstances 
exequatur would in fact be needed. In this connection, it should be made clear that a 
declaration of enforceability is not required unless the implementation of the provisions 
of a foreign measure of protection involves, as such, some form of coercion. In situations 
when recognition is sufficient, then a declaration of enforceability would not be required. 
Exequatur  would  accordingly  not  be  needed  (and  may  not  be  requested)  where  the 
person in charge of representing and/or assisting the adult merely wishes to exercise 
their  powers  in  a  State  other  than  the  State  under  whose  law,  or  based  on  whose 
measures, such powers were conferred (e.g., where the grantee of a private mandate 
seeks to withdraw monies held in a bank account opened by the adult).  

It is important to stress that, under a harmonised body of rules governing the cross-
border movement of judicial and administrative decisions, whether the implementation 
of a foreign measure of protection requires a declaration of enforceability in the State 
of enforcement is a question that calls for a uniform answer. It is true that the scope 
and  content  of  a  protective  measure  depend  on  national  law,  namely  the  law  of  the 
State in which the measure originates. It is also true that the enforcement of a measure 
of protection is to take place in accordance with national law, this time the law of the 
State  in  which  enforcement  is  ought.  Instead,  in  a  system  like  the  2000  Hague 
Convention, the enforceability of a protective measure is subject to uniform standards. 
It is for uniform standards to determine whether a particular measure, having regard to 
its scope and content, must be declared enforceable in another State as a pre-requisite 
for  its  implementation  in  that  State,  or  not.  If  things  were  otherwise,  the  uniform 
application  and  the  practical  effect  of  the  harmonised  rules  on  the  cross-border 
circulation of protective measures would be frustrated. 

Authentic instruments 

In  the  field  of  succession  and  matrimonial  property  rights,  the  use  of  authentic 
instruments  is  widespread.  Such  instruments  oftentimes  create  claims  between  the 
parties concerned, for example in the form of matrimonial property contracts.  

Authentic instruments have also an important role to play in the field of adult protection. 
Specifically,  private  mandates  are  often  established  in  the  form  of  authentic 
instruments. The Hague Convention fails to include provisions that make it possible to 
claim,  in  one  Contracting  State,  the  effects  of  an  authentic  instrument  originating  in 
another, i.e. the particular effects that arise from those instruments by virtue of their 
authentic character (the substantive effects of those instruments may, instead, already 
be covered by the Convention: thus, Article 15 of the Convention applies to powers of 
representation granted  in contemplation of a loss  of autonomy  regardless  of whether 
those powers are granted under an authentic instrument or otherwise). 

EU  legislation  aimed  at  complementing  the  Hague  Convention  should  provide  for  the 
acceptance  and,  where  appropriate,  the  enforceability,  of  such  authentic 
instruments as are established in a Member State for the purposes of protecting an 
adult.  

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Various legislative measures have been adopted by the Union to deal with the cross-
border acceptance of authentic instruments and their enforceability. These include the 
European  Succession  Regulation  on  matters  of  succession  and  Regulations  (EU) 
2016/1103137and (EU) 2016/1104138 on matrimonial property regimes and the property 
consequences of registered partnerships. However, none of these measures applies to 
private  mandates.  This  gap  should  accordingly  be  filled  by  introducing  rules  on  the 
acceptance  and  enforceability  of  authentic  instruments,  modelled  on  the  existing 
measures of the Union. 

Direct Communication 

The 2000 Hague Convention provides for cooperation to be mostly channelled through 
the Central Authorities designated by the Contracting States. The Convention, in Article 
32, contents itself with providing that the authorities of one State may get in touch with 
the  authorities  of  another  State  for  the  purpose  of  discharging  some  of  their  duties 
under the Convention. The provision, however, makes clear that individual Contracting 
States  may  declare  that  all  requests  must  rather  be  made  through  their  Central 
authorities  (Belgium,  Estonia  and  France,  for  example,  issued  declarations  to  that 
effect).  

Cooperation  would  be  more  effective,  it  is  contended,  if  the  potential  of  direct 
communications were fully exploited.  

EU legislation in the field of judicial cooperation promotes direct communication between 
Member  States’  authorities.  For  example,  the  Taking  of  evidence  Regulation  (EU)  No 
1206/2001 (soon to be replaced by Regulation (EU) 2021/1783139) provides that a court 
in a Member State, seeking to obtain evidence located in another Member State, must, 
as a rule, transmit a request directly to the competent court of the latter State. Article 
86(1)  of  Regulation  (EU)  2019/1111140  (hereinafter  Brussels  II-ter  Regulation)  on 
matrimonial matters and the matters of parental responsibility provides that the courts 
of Member States ‘may cooperate and communicate directly with, or request information 
directly  from,  each  other  provided  that  such  communication  respects  the  procedural 
rights of the parties to the proceedings and the confidentiality of information’. A similar 
provision  is  found  in  Article  42  of  the  Insolvency  Regulation.  All  in  all,  EU  legislation 
appears to regard direct communication as a tool to make judicial cooperation easier, 
faster and more efficient.  

In the same manner, a legal basis for direct judicial co-operation could be set up, which 
could  in  many  cases  form  the  link  in  the  context  of  expert  judicial  co-operation. 
Furthermore,  providing  a  legal  basis  for  direct  judicial  co-operation  could  aid  in 
increasing the digitalisation of cross-border judicial co-operation.  

Cooperation  in  the  protection  of  adults  would  similarly  benefit,  it  is  submitted,  from 
direct contacts between the authorities of the Member States concerned. One scenario 
where direct communication could prove particularly beneficial is when the transfer of a 
case  from  the  courts  of  one  State  to  another  pursuant  to  Article  8  of  the  Hague 
Convention. In assessing whether the transfer would be in the interest of the adult, the 

137 Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of 
jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial 
property regimes, OJ L 183, 8.7.2016, p. 1–29. 

138 Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced cooperation in the area of 
jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property 
consequences of registered partnerships, OJ L 183, 8.7.2016, p. 30–56. 

139 Commission Delegated Regulation (EU) 2021/1783 of 2 July 2021 supplementing Regulation (EU) No 

596/2014 of the European Parliament and of the Council with regard to regulatory technical standards 
containing a template document for cooperation arrangements with third countries (Text with EEA rele-
vance),  C/2021/4786, OJ L 359, 11.10.2021, p. 1–5 

140 Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of 
decisions in matrimonial matters and the matters of parental responsibility, and on international child 
abduction, ST/8214/2019/INIT, OJ L 178, 2.7.2019, p. 1–115. 

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court seized of the matter will normally need to  exchange with the authorities  of the 
country  to  which  the  transfer  itself  is  contemplated.  Direct  communication  will  often 
improve the effectiveness of such an exchange.  

Truly enough, direct communication will not always be possible, e.g., due to language 
barriers or  other practical difficulties. Central  Authorities  should accordingly retain an 
important  role  to  play,  and  should  be  ready  to  intervene  whenever  the  authorities 
concerned  are  not  in  a  position  to  entertain  a  direct  exchange,  or  as  their  dialogue 
proves problematic. Allowing for  flexible and informal  channels  of co-operation would 
also  contribute  to  increase  cooperation,  where  the  creation  of  highly  formalistic, 
bureaucratic channels could end up slowing down the process. 

Right to be heard 

Another  element  that  could  be  regulated  in  an  EU  instrument  is  the  right  for  the 
vulnerable adult to be heard. A comparison with the right given to be a child to express 
his  or  her  views  is  easily  made.  As  stated  in  recital  39  in  the  new  Brussels  II-ter 
Regulation, the opportunity of a child to express his or her views freely is protected by 
Article 24(1) of the Charter of Fundamental Rights of the European Union, as well as 
Article 12 of the UN Convention on the Rights of the Child. Although the Regulation does 
not determine who will hear the child or how the child is to be heard, the Regulation 
does  lay  down  a  general  protection  that  the  child  should  be  given  the  opportunity  to 
heard. This is subsequently reflected in Article 21 of the Brussels II-ter Regulation. A 
similar approach could also be taken with regard to vulnerable adults, whereby a future 
EU instrument could provide for a minimum obligation to provide the vulnerable adult 
with an opportunity to be heard, except in exceptional circumstances which would then 
need to be indicated on any future certificate (in a similar fashion to the annexes to the 
Brussels IIa and II-ter Regulations). 

Legal aid 

Also legal aid is an important and essential component in any the implementation of any 
future  instrument.  Looking  at  maintenance  payments,  the  Maintenance  Regulation 
imposes a very high burden on States to provide free legal aid in these cases. Recital 
36  of  the  Regulation  specifically  identifies  the  fact  that  a  very  favourable  legal  aid 
scheme  needs  to  be  created  regarding  maintenance  payments  in  respect  of  children 
under  the  age  of  21.  Specific  rules  were  therefore  added  on  legal  aid  to  the  regime 
currently already in existence in the context of Directive 2003/8/EC. In this context, if 
the choice is made to provide for a favourable legal aid system, reference could be made 
to Articles 44 through 47 of the Maintenance Regulation. Furthermore, due to a number 
of  content-related  restrictions  imposed  by  Directive  2019/19  (Legal  Aid  Directive),  it 
would  be  preferable  to  create  a  more  specific  system  particularly  applicable  in  the 
context of any future instrument.  

Other elements 

Other elements that could also be dealt with in the context of, or in connection with, a 
European  instrument  include  aspects  which  would  build  upon  the  heightened  level  of 
mutual  trust  and  cooperation  within  the  EU.  Reference  is  made,  inter  alia,  to:  the: 
creation  of  an  electronic  European  registry,  or  interconnection  of  electronic 
national  registries  of  protection  measures;  the  use  of  (electronic)  standard 
multilingual  forms  (certificates,  requests,  acknowledgement  of  receipt  etc.);  the 
notification of information in relation to national law or judicial cooperation to 
be published on the e-Justice Portal; the facilitation of legal aid application in 
cross-border cases, including relevant  adaptations to the legal framework provided 
by the Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in 
cross-border disputes by establishing minimum common rules relating to legal aid for 
such  disputes;  and  digitalisation  of  the  communications  between  central  and 
competent authorities. 

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The survey carried out in the context of the study gathered the views of stakeholders 
on two of these elements: the use of standard multilingual forms and the notification of 
information in relation to national law or judicial cooperation to be published on the e-
Justice Portal. 

On the multilingual dynamic forms on the European e-Justice portal, when asked 
which  method(s)  would  be  best  to  harmonise  recognition  proceedings,  most 
respondents (85 %), both MSCAs and legal practitioners, chose the option of using a 
multilingual  standard  form  available  on  the  European  e-Justice  Portal  to  certify  the 
decision.  

Figure 15: In your opinion, what would be the best(s) method(s) to harmonise 
recognition proceedings (MSCAs and legal practitioners surveys, N=49) 

An  MSCA  and  two  legal  practitioners  argued  that  multilingual  standard  forms  would 
speed up the proceedings as it would introduce more standardisation and reduce trans-
lation costs. One practitioner stated that the e-Justice portal has proven to be an effi-
cient and easily accessible source of information for civil matters. One practitioner ar-
gued that the multilingual standard form on the e-Justice portal should be accompanied 
by a verification number, as in the case of apostille, as it would make the verification of 
the decision easier in the Member State in which the judgment is to be enforced. One 
MSCA indicated that in addition to these options a mechanism to facilitate the translation 
requirements of documents circulating under the Convention should be developed. 

The majority of stakeholders, both MSCAs and legal practitioners, believed it would be 
useful  to  add  the  possibility  of  filling  out  multilingual  dynamic  forms  on  the  e-Justice 
portal for different types of procedures. 84 % believed that it would be extremely useful 
or very useful for certifying decisions, 84 % for sending cooperation requests to com-
petent authorities/courts and 74 % believed it would be extremely useful or very useful 
for issuing European certificates. Very few stakeholders provided comments to substan-
tiate their answers. One MSCA expressed reluctance to create a specific certificate only 
for EU Member States. 

Figure 16: In your opinion, how useful would it be to add the possibility of filling out 
multilingual dynamic forms on the European e-Justice portal for each of the following 

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Study on the cross-border legal protection of vulnerable adults in the EU 

procedures? (These forms would also contain guidance and automatic filling of certain 
types of information) (MSCAs and legal practitioners surveys, N=52) 

In relation to the factsheets per country on the Atlas of the e-Justice portal, most 
of the stakeholders (84 %), both MSCAs and legal practitioners, fully agreed or agreed 
that  providing  general  information  on  the  applicable  instruments  and  fact-sheets  per 
country on the Atlas of the e-Justice portal would greatly facilitate cross-border cooper-
ation procedures. 

Figure 17: To what extent do you agree with the following statement? 

“Providing general information on the applicable instruments and fact-sheets per 
country on the Atlas of the e-Justice portal would greatly facilitate cross-border 
cooperation and procedures.” (MSCAs and legal practitioners surveys, N=55) 

Several stakeholders mentioned that the e-Justice portal is a useful tool and that the 
provision  of  information  on  national  laws  would  help  practitioners.  One  MSCA  high-
lighted, however, that this should be complemented by training and support of profes-
sionals and another MSCA stated that in their experience this would be of only limited 
added value. Several legal practitioners point to the work carried out by the Council of 
the Notariats of the European Union (CNUE) which makes available information for prac-
titioners and citizens in 22 Member States, published on the website  http://www.the-
vulnerable.eu/.  

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The  latter  improvements  would  not  necessarily  require  the  adoption  of  a  legislative 
measure. They would however represent a crucially useful complement to such a meas-
ure. 

Key findings:  

•  Provided  that  all  Member  States  have  ratified  the  Hague  Convention,  even 
though the Convention works well, it could still be improved in some respects, 
and does not necessarily address sufficiently the specific needs pertaining to the 
relations between the Member States of the EU, given the size and intensity of 
the cross-border mobility of individuals and assets in Europe.  The enactment 
of a legislative measure regarding the international protection of adults 
should therefore be considered to complement the Hague Convention.  
•  The adoption of such EU legislative measure would in principle be  compatible 
with the international obligations of the Member States under the Con-
vention, even though, for particular issues, it may prove difficult to draw a clear 
distinction between situations that the Union may regulate without hindering the 
operation  of  the  Convention  and  situations  where  the  EU  legislation  would  in-
stead frustrate the functioning of the Convention. 

•  With regard to the form of the instrument, with respect to the field of private 
international law, solutions can only realistically be achieved through legislative 
options as the flexibility afforded to States by soft-law mechanisms is not suited 
to  the  field,  especially  when  dealing  with  international  procedural  law  aspects 
(i.e., jurisdiction and recognition and enforcement of judgments). Based on the 
instruments  already  existing  at  EU  level  to  regulate  private  international  law 
matters, a Regulation would be most suited to ensure that the relevant rules 
are directly and uniformly applicable in a mandatory manner and require no ac-
tion by the Member States to transpose them into national law.  

•  With regard to the content of the instrument, the experience drawn from the 
application  of  other  private  international  law  instruments  adopted  at  EU  level 
shows that the creation of a set of rules that are virtually identical to the Con-
vention  is  not  be  advisable  and  should  only  be  used  as  a  last  resort.  Instead, 
additional, complementary rules in an EU instrument should be  considered, as 
has been done in the field of international child abduction with the Brussels II-
bis Regulation. Such an instrument would then cover address the shortcomings, 
develop specific aspects or complement the Convention.  

•  Provisions would include a key set of measures, such as the choice of the court 
by  the  adult  in  advance  (before  the  incapacity  occurs),  the  creation  of  an  EU 
certificate of powers of representation (based on the example of the European 
Certificate of Succession and recent development in the field of maintenance), 
the adoption of common enforcement rules among Member States (with clear 
rules  on  exequatur),  the  acceptance  and  enforceability  of  authentic  instru-
ments, rules on legal aid, and measures to facilitate communication between 
Member States competent authorities.  

•  Other measures could also be considered, such as the creation of an electronic 
European registry, or interconnection of electronic national registries of protec-
tion measures, the use of standard multilingual forms, the notification of infor-
mation in relation to national law or judicial cooperation to be published on the 
e-Justice Portal; the facilitation of legal aid application in cross-border cases, and 
digitalisation of the communications between central and competent authorities.  

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5  Conclusions and recommendations  

5.1  Recommendations on mandatory ratification 

Ratification  of  the  Convention  by  all  Member  States  would  either  fix  or  significantly 
mitigate many of the shortcomings discussed in the previous section. If the EU limited 
itself to draw inspiration from the Convention to enact legislation in this field, only some 
of the above shortcomings would be addressed, and difficulties would persist. Vulnerable 
adults move across borders both within and outside the EU. Their assets and financial 
interests may happen to be located both in a Member State and in a third country. The 
2000 Hague Convention is a global instrument. It is already in  force  for some States 
outside the Union, and several others have expressed an interest in joining it. Arguably, 
the best way to approach the challenges posed by such a phenomenon is, for the Union 
and its Member States, to make sure that cross-border cases are dealt with under the 
same principles, no matter whether they involve only two or more EU Member States 
or have ramifications in a third country. 

The 2000 Hague Convention only provides for the ratification by States and thus does 
not allow the EU to accede. However, the Council, under a proposal from the Commis-
sion, could, based on the findings illustrated above, adopt a decision both authorising 
and obliging Member States to ratify the Convention, within a specific deadline, subject 
to the demonstration of the external competence of the EU in that field. As  indicated 
above in this report, various arguments can be put forward to support that such com-
petence  exists.  Therefore,  this  route  should  certainly  be  pursued.  Such  a  step  would 
ensure the best possible solution for several current issues in this field.  

5.2  Recommendations on the adoption and content of a possible EU instru-

ment 

Utilising its internal competence, the EU should also enact measures aimed to improve 
the operation  of 2000  Hague Convention within the intra-EU context. As discussed in 
this report, this could include drafting a complementary EU instrument in the form of a 
regulation  which  would  serve  to  further  strengthen  the  operation  of  the  2000  Hague 
Convention. Special attention would however need to be paid to ensuring that such an 
instrument does not jeopardise the  operation  of the 2000  Hague Convention. The EU 
has the task to develop the European area of justice in civil matters based on the prin-
ciples of mutual trust and mutual recognition of judgements. The establishment of the 
area of justice requires the adoption of measures further facilitating the judicial cooper-
ation in civil matters having cross-border implications. While many areas of civil justice 
are covered by the European acquis and have instituted common rules for the recogni-
tion  of  decisions  or  abolished  exequatur  for  instance,  the  cross-border  protection  of 
adults is currently not covered by an EU instrument. Such an EU initiative coupled with 
the ratification of the Hague Convention could be similar to what has been done in the 
area of child abduction or maintenance recovery. 

The  working  of  such  an  instrument  is  not  excluded  by  the  2000  Hague  Convention. 
According to Article 49(2) and 49(3) of the Convention the convention does not affect 
the possibility for one or more contracting states to conclude agreements or take part 
in  regional  rules  which  contain  “in  respect  of  adults  habitually  resident  in  any  of  the 
States Parties to such agreements, nor do these agreements affect the relationship of 
such states with other contracting states. This would therefore ensure that once all EU 
Member States have ratified the 2000 Hague Convention, the Convention would apply 
throughout the EU and would be supplemented by a future EU-wide instrument which 
would apply in intra-EU cases. In this manner a similar solution could be achieved as 
has been achieved with regard to international child abduction by means of the interac-
tion  between  the  Brussels  IIa  Regulation  (as  of  1  August  2022  the  Brussels  II-ter 

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Regulation) and the 1980 Hague Child Abduction Convention. In this respect, the ques-
tion is what elements could be included in such an instrument. 

The various elements raised in this report with regard to the interpretation issues that 
could arise if the substantive scope of the instruments were to be different outweighs 
the benefits of such an extension of scope. Therefore, it is not recommended to alter 
the substantive scope of any future EU instrument. The only exception to such a possi-
bility would be in relation to any possible choice of court clause that a future EU instru-
ment may include.  

Various techniques could be utilised to ensure that the problems identified in this report 
could be addressed in a future EU instrument. The problems can be best dealt with by 
ensuring that a variety of legislative techniques are utilised (e.g., creation of additional 
subsidiary  rules  of  jurisdiction,  the  incorporation  of  the  2000  Hague  Convention  with 
regards to jurisdiction and applicable law rules, the creation of a separate recognition 
regime etc.).  

Overall, there are solutions in order to present an EU regulation that could provide for 
temporary solutions to the patchwork map of adult protection at this moment in time, 
as well as providing a template for future action within the EU could serve to operate as 
an additional set of rules that would complement and further enhance the operation of 
the  2000  Hague  Convention,  without  ensuring  that  the  application  of  the  Convention 
would be become more difficult within the Union. 

154 

 
 
 
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doi:10.2838/952193 
ISBN 978-92-76-46709-0