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Abstract
Increasing global mobility of people with disabilities, changes in the measures employed to protect them, and growing awareness of their human rights significantly challenge the existing cross-border protection of adults around the world. National legislations are slow to react to this challenge, and the existing solutions are often insufficient. While the Hague Convention on the Protection of Adults (2000) is imperfect, it offers a solution to this problem. This article discusses the changing approach towards people with disabilities and their rights and demonstrates the incompatibility of the local protection of adults with their cross-border protection. The article further explores possible solutions to this problem. It then explains why the Hague Adults Convention is the best solution to this problem and what changes should and could be made in order to improve the solution offered by the Convention even further.
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No potential conflict of interest was reported by the author(s).
Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.
Notes
1 “Rabbi Ben Ezra”, in J Pettigrew (ed) Robert Browning: The Poems (1st vol, Yale University Press, 1981) 781.
2 In the legal sense. Though this might often be a result of lack of capacity in the legal sense. See R Frimston, “The 2000 Adult Protection Convention – Sleeping Beauty or Too Complex to Implement?” In J Thomas, R Gulati and B Koehler (eds), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar Publishing, 2020), 227, 227.
3 https://www.freebritney.net. Britney Spears was put under the conservatorship of her father in 2008, due to an alleged mental crisis. With time, some argued that the conservatorship was not protecting but rather overtaking Spears, that she was kept under a conservatorship that extended beyond the necessary time and scope, that the appointed conservator did not act in her best interest, and that medical and financial decisions were made regardless of her wishes and for the benefit of others. A Californian court terminated the conservatorship in November 2021. The Free Britney movement, composed mainly of the artist’s fans as well as human rights activists, was discussed in numerous news articles worldwide as well as a New York Times movie (“Framing Britney Spears,” 2021).
4 See eg V Bumbaca, “The Hague Convention on the Protection of Adults: Plea for and Practice of an ''Adult'' Approach” (2021/2022) 23 Yearbook of Private International Law 365, 371.
5 The wording of this definition is taken from the preamble of the Hague Convention on the Protection of Adults, 2000.
6 CF Goodey, “The Psychopolitics of learning and Disability in Seventeenth-Century Thought” in A Digby and D Wright (eds) From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities (Routledge, 1996) 93, 93–95. For a detailed discussion of historical trends in the treatment of people with mental disabilities, see SL Brakel and RS Rock (eds) The Mentally Disabled and the Law (University of Chicago Press, revised edition, 1971), Chapter 1.
7 In Roman Law see D. Lush, “Roman Origins of Modern Guardianship Law” in AK Dayton (ed) Comparative Perspectives on Adult Guardianship (Carolina Academic Press, 2014) 3, 6, 11. M Kaser, Roman Private Law (translated by R Dannenbring, University of South Africa, 13th edn, 1984) 84, clearly distinguishes between individuals with mental incapacity (“lunacy”) and financial irresponsibility (“prodigality”); the former were addressed by law from “quite early times” and have no legal personhood whatsoever, whereas the latter were recognised more recently and have full legal capacity but diminished capability to act financially, due to their exclusion from transactions.
8 PM Horstman, “Protective Services for the Elderly: The Limits of Parens Patriae” (1975) 40 Modern Law Review 215, 219–20. See also Lord Coke’s decision in the famous Beverley case, 4 Co. 123B, 76 Eng. Rep. 1118 (K.B. 1603), discussing the king’s protection of the property of the incapacitated person; American Bar Foundation, The Mentally Disabled and the Law (rev edn, 1971) 2–6.
9 Horstman, ibid at 220.
10 A Forrester, S Ozdural, A Muthukumaraswamy and A Carroll, “The Evolution of Mental Disorder as a Legal Category in England and Wales” (2008) 19 Journal of Forensic Psychiatry & Psychology 543, 544.
11 Even if, at least in some cases, in name only.
12 See eg CL Robertson, “Lunacy in England” (1881) 7 Journal of Psychological Medicine and Mental Pathology174, 179; DA Pinals and D Mossman, “Civil Commitment” in RL Cautin, SO Lilienfeld (eds) The Encyclopedia of Clinical Psychology (Wiley-Blackwell, 2015) 518, 519. See also Halsbury’s Laws of England §559 (vol 75, 2013) (Reference was made to this edition as the next, current one, omits this paragraph); Lunacy Act 1845 (8 & 9 Vict, c 100), eg, ss 40, 42, 46, which not only use the word “patient,” a novelty in itself, but they consider the medical and social welfare of the patients. See also CL Robertson, ibid, discussing the release from asylum of all but those not dangerous to themselves or others.
13 BB Swadron, Mental Retardation (National Institute on Mental Retardation, 1972) 1.
14 Declaration on the Rights of Mentally Retarded Persons, General Assembly resolution 2856 (XXVI) of 20 December 1971.
15 Ibid, Art 5.
16 PB Teaster, WC Schmidt Jr, EF Wood. SA Lawrence and MS Mendiondo, Public Guardianship: in the Best Interest of Incapacitated People? (Praeger, 2010) 10, n 9.
17 Ibid, page 3.
18 R Frimston, “The Cross-Border Protection of Adults: Hague 35 Non-Contracting States”, in R Frimston, AR Keene, C van Overdijk and AD Ward, The International Protection of Adults (Oxford University Press, 2015) paras 6.12–6.16.
19 Eg, Brazil, Iceland, Malta, the Netherlands, Norway, Portugal and Sweden. See ibid, at para 6.19.
20 Convention on the Rights of Persons with Disabilities, Dec 13, 2006, 2515.U.N.T.S 3.
21 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en.
22 CRPD Art 1.
23 AS Kanter and Y Tolub, “The Fight for Personhood. Legal Capacity and Equal Recognition Under Law for People with Disabilities in Israel and Beyond” (2017) 39 Cardozo Law Review 557, 571.
24 CRPD Art 12(4).
25 Council of Europe Committee of Ministers, Recommendation No R(99)4 on Principles Concerning the Legal Protection of Incapable Adults (Feb. 23, 1999), https://www.coe.int/t/dg3/healthbioethic/texts_and_documents/Rec(99)4E.pdf.
26 K Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship, and Beyond” (2012) 44 Columbia Human Rights Law Review 93, 141, n 212. Guardianship still exists for minor children. See https://www.alzheimer-europe.org/Policy/Country-comparisons/2010-Legal-capacity-and-proxy-decision-making/Sweden; H Tiberg, S Sterzel and P Cronhult, Swedish Law – A Survey (James Hurst transl, Juristförlaget, 1994) 385.
27 Glen, ibid 140–41. But see different definitions of these roles at Kantor and Tulob, supra n 23 at 598.
28 SFS 1949:381 Chapter 11 s 4 (god man) and s7 (förvaltare).
29 Tiberg et al, supra n 26 at 388.
30 T Fridström Montoya, “Supported Decision-Making in Swedish Law – Is the “Good Man” a Good or Bad Guy in Light of the CRPD?” (2019) Psychiatrie Verlag, available at https://psychiatrie-verlag.de/wp-content/uploads/2019/01/919-Fridström-Montoya-English-version.pdf, 3. At least formally, in some cases a god man might be appointed without consent (see 9).
31 Tiberg et al, supra n 26 at 388.
32 SFS 1949:381 Ch 11, s7.
33 Fridström Montoya, supra n 30 at 3.
34 Ibid, 3 & 7; Tiberg et al, supra n 26 at 387.
35 See, eg, R Dinerstein, E Grant Grewal and J Martinis, “Emerging International Trends and Practice in Guardianship Law for People with Disabilities” (2016) 22 Ilsa Journal of International and Comparative Law 435, 442–43.
36 Amendment no 18 of the Legal Capacity and Guardianship Act, 5722–1962 (11.4.2016, entry into force 11.10.2016).
37 Legal Capacity and Guardianship Act, 5722–1962, s33.
38 Ibid, Chapter 2A, s32A-32ZI.
39 Ibid, s67(b).
40 Ibid, s32.14(a).
41 Ibid, s32.17(a).
42 Ibid, s32B(b).
43 Ibid, s32B(a)-(b).
44 Ibid, s32J.
45 Ibid, s67(b).
46 Similar rules exist in Alberta (The Adult Guardianship and Trusteeship Act (AGTA) and The Personal Directives Act); Manitoba (The vulnerable persons living with mental disability act, S.M. 1993, c 29, C.C.S.M., c. V-90, s57(1)); Saskatchewan (The Adult guardianship and co-decision-making act, S.S. 2000 c. A-5.3); Yukon (Adult Protection and Decision Making Act, S.Y. 2003, c 21, Sched. A, s38 [Y.K. Act]).
47 Substitute Decisions Act, 1992, S.O. 1992, c 30, s22(3) (property) and s55(2) (personal care).
48 Substitute Decisions Act, s25(1) (property) and s45 (personal care). See also s57(2) of the Mental Health Act.
49 The act divides it into two: a CAP (ss7–14), and a Power of Attorney for Personal Care (ss46–53). See also AR Keene and J Marques de Souza, “Canada – Ontario”, in Frimston et al, supra n 18, para 32.30.
50 In matters of personal care – a person over the age of 16, see s44 of the Substitute Decisions Act, 1992.
51 Substitute Decisions Act, s46.
52 Ibid, s7(b).
53 See RW Howard, “Western retirees in Thailand: Motives, Experiences, Wellbeing, Assimilation and Future Needs” (2008) 28 Ageing and Society 145; A Hill, “Families Sending Relatives with Dementia to Thailand for Care” The Guardian (12.1.2020) available at https://www.theguardian.com/society/2020/jan/12/families-sending-relatives-with-dementia-to-thailand-for-care. See also the film Thailand's Last Resort (2020) directed by Melissa Fung and David Boyle, available at https://youtu.be/i7yeiO-UzoM. Finally, this phenomenon was also presented in popular culture in movies such as Best Exotic Marigold Hotel (2011) and its 2015 sequel.
54 Eg, I Doron, “Elder Guardianship Kaleidoscope – A Comparative Perspective” (2002) 16 International Journal of Law Policy and the Family 368.
55 R and T Odlöw, “Sweden” in Frimston et al, supra n 18, para 50.42.
56 For durable powers of attorney, see K Dayton, “The United States of America” in Frimston et al, supra n 18, at para 24.53; for health care decisions, see ibid para 24.70; for property-related measures, see ibid para 24.101. This is also at the inter-state (intra-US) level, as it has been held that the Full Faith and Credit clause of the US Constitution does not apply to protective measures, see ibid, para 24.100. The US does have some legislation on the matter, eg the 2007 Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) but it clearly deems, in Art 103 that a foreign order is not enforceable pursuant to the registration procedures under Art 4 of the Act, though a court in the United States may otherwise apply the Act as if the foreign country were an American state.
57 Mainly the Foreign Judgments Enforcement Act, 5718–1958.
58 Celia Wasserstein Fassberg, Private International Law (Nevo, 2013) 490 [Hebrew].
59 S77(b) of the Legal Capacity and Guardianship Act, 5722–1962.
60 S85(1) of the Substitute Decisions Act, 1992. The validity is subject to the law of the place where the power of attorney was executed, or the law where the grantor is domiciled or maintains their habitual residence.
61 S86(1) of the Substitute Decisions Act, 1992.
62 As such appointees do not have authorities comparable to those of guardians (hence are likely not subject to s86), and are not guardians, hence not subject to s85. Note that a power of attorney such as the Israeli DPA would be recognised, under s85.
63 S 86(4) of the Substitute Decisions Act, 1992.
64 S 86(4)(b)+(c): subs (b) does subject the measure to its foreign law, however subs (c) also subjects it to the Ontarian law, thus possibly altering its conditions.
65 Information given in an interview with Advocate Efrat Reich, a lawyer and social worker in the department for oversight over guardianships and alternative measures, February 9th 2022. Transcript on file with the author.
66 For examples of the many differences and intricacies see AD Ward, “Legal Protection of Adults – An International Comparison” (2017) 2017 Elder Law Journal 147.
67 As is demonstrated by the state-by-state discussion in Part 3 of Frimston et al supra n 18.
68 Another, related problem, is that of adaptation, see K Lipstein, “Conflict of Laws 1921–1971 the Way Ahead” (1972) 31 The Cambridge Law Journal 67, 81–83. While this further complication is possible and relevant to protective measures, it is not discussed here.
69 Legal Capacity and Guardianship Act s32F(c). These include, eg, giving substantial gifts or donations.
70 Ibid, s32F(d). These include, eg, some transactions in real-estate and pensions.
71 V Lipp and A Ward, “Germany” in Frimston et al, supra n 18, para 22.22. See also supra n 65.
72 Eg PMM Mostermans, “A New Hague Convention on the International Protection of Adults” (2000) 2 International Law FORUM du Droit International 10; E Clive, “The New Hague Convention on the Protection of Adults” (2000) II Yearbook of Private International Law 1, 2–3.
73 Clive, ibid, at 3–4.
74 Convention concernant l’interdiction et les mesures de protection analogues 1905.
75 Clive, supra n 72, at 2.
76 Eg, the Nordic Convention on Marriage, Adoption and Guardianship, 1931: League of Nations Treaty Series, vol 126, pp121, 150 and 155 and the Convention on Recognition and Enforcement of Foreign Judgments, 1861: League of Nations Treaty Series, vol 139, p165 in Nordic Countries. See also Allan Philip, “The Scandinavian Conventions on Private International Law” (1958) Recueil des Cours 16. Another example is the intra-US arrangement of the 2007 Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which applies in all but four (Florida, Kansas, Michigan and Texas) US states. An inter-state version of this act, the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPPA), was introduced but has been far less broadly accepted, see https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c.
77 P Lagarde, Protection of Adults Convention-Explanatory Report (The Hague Conference on Private International Law Permanent Bureau, new and revised edition, 2007) 39.
78 E Clive, “Report on Incapable and Other Vulnerable Adults” in Proceedings of the Special Commission of a Diplomatic Character of September-October 1999 – Protection of Adults (1999) 10, 10–11; Lagarde, ibid, at 40–41.
79 D Hill, “The Hague Convention on the International Protection of Adults” (2009) 58 International and Comparative Law Quarterly, 469, 469–70. Replacing and improving on the rather unsuccessful Convention du 17 juillet 1905 concernant l'interdiction et les mesures de protection analogues.
80 Adults for the purpose of the Convention are people who are 18 years old or older, even if they were younger than this age at the time the measures were taken in relation to them, according to Art 2 of the Convention. This provision is particularly required because in some Contracting States, such measures can be taken from a younger age. For example, in the UK, the minimum age is 16; see Mental Capacity Act, 2005 s2(5).
81 The preamble to the Convention.
82 J Long, “Rethinking Vulnerable Adults’ Protection in the light of the 2000 Hague Convention” (2013) 27 International Journal of Law, Policy and the Family 51, 61–64.
83 Lagarde, supra n 77 at 41.
84 Art 1 of the Convention.
85 Lagarde, supra n 77 at 42.
86 Art 5. See also M Álvarez Torné, “Current Issues in the Protection of Adults from the Perspective of Private International Law” (2016) 32 Revista Electrónica de Estudios Internacionales 1, 8; M Drventic, “The Protection of Adults in the European Union” (2019) 3 ECLIC (EU and Comparative Law Issues and Challenges) 803, 816–19. The Convention also addresses, in Art 6, the situation of people who are internationally displaced so that their habitual residence cannot be established, giving jurisdiction to the country in which the person is present.
87 Art 7(1).
88 Art 9.
89 Ibid.
90 Art 10(1).
91 Art 10(3).
92 Art 10(2).
93 See, eg, AR Keene, “Hague 35: Introduction and Background”, in Frimston et al supra n 18, para 7.17.
94 This works well with the premise of the Convention, which assumes fewer guardians and more supporters and representatives. But while habitual residence is clearly a matter of fact (see, eg, Frimston, supra n 2 at 230), it is nonetheless difficult to ascertain whether an adult protected by the Convention changed her habitual residence following a move from one state to another (ibid). The Special Commission, in its 15 November 2022 Conclusions & Recommendations (available at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf), also noted that habitual residence is a matter of fact (page 2, point 10), however it did not give guidance as to deciding whether a change of habitual residence had occurred, nor did it suggest a default rule for cases where no or both jurisdictions see themselves as having jurisdiction. Instead, the question was left in the hands of the authorities of the new habitual residence, based on information pertinent to the determination of habitual residence shared between jurisdictions (page 2, points 10–11).
95 Eg, Israel; see Legal Capacity and Guardianship Act, s 80.
96 Art 5.
97 Lagarde, supra n 77 at 42.
98 Art 13.
99 This too was inspired by the Children’s Convention. See Lagarde, supra n 77 at 70.
100 Lord Collins of Mapesbury and J Harris (eds), Dicey, Morris and Collins on the Conflict of Laws (Sweet and Maxwell, 16th edn, 2022) paras R19–001 and R19–068.
101 Ibid, para 22–016.
102 According to Art 16, in cases where powers of representation are withdrawn or modified by measures taken by an authority that has jurisdiction under the Convention, this authority will likely have a sufficient connection to the person. Moreover, the changes will be made only when necessary to guarantee the protection of the adult or her property, but they will be made while taking into account the adult’s personal law as prescribed by Art 15 (that is: habitual residence or another law chosen by the adult and having a sufficient connection). See also AR Keene, “Hague 35: Private Mandates and Other Anticipatory Measures” in Frimston et al, supra n 18, paras 9.36–9.37. Note, however, that this article de facto invites an intervention and evaluation of foreign procedures and choices, thus infringing on autonomy and jurisdiction. See Hill, supra n 79 at 474.
103 K Karjalainen, “Fragility of Cross-Border Adult Protection: The Difficult Interplay of Private International Law with Substantive Law” (2018/2019) 20 Yearbook of Private International Law 439, 445.
104 Art 13(2).
105 Art 14.
106 Art 15.
107 Art 17.
108 Art 19. See also, eg, Art 21 of the Children’s Convention. The same is true for the EU’s Rome Regulations; see Art 20 of Rome I, Art 24 of Rome II, Art 11 of Rome III. The situation is somewhat different in Art 34 of Rome IV where limited renvoi is allowed.
109 Art 20.
110 Art 21.
111 Lagarde, supra n 77 at 41.
112 Art 25(1).
113 Art 22(1) only refers to automatic recognition not automatic enforcement.
114 Art 22(1).
115 Art 22(2).
116 Art 22(2)(a).
117 Art 22(2)(b).
118 Art 22(2)(c).
119 Art 22(2)(e).
120 Art 22(2)(d).
121 Lagarde, supra n 77 at 81.
122 Art 25(1).
123 Art 25(2).
124 Art 25(3).
125 Art 26.
126 Art 24.
127 Art 27.
128 Lagarde, supra n 77 at 41.
129 Art 28.
130 Art 29(2). Note that while cooperation might rely on reciprocity, the Convention does not stipulate so.
131 As reflected by the many documents, as well as the Review Special Commission in 2022 organised by the HCCH in an attempt to promote and strengthen the Convention and its workings. See details on the Special Commission page on the HCCH website: https://www.hcch.net/en/publications-and-studies/details4/?pid=6795&dtid=57. See also European Law Institute, The Protection of Adults in International Situations 10 (2020), available at: https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI_Protection_of_Adults_in_International_Situations.pdf.
132 See the status chart for the Convention on the HCCH website: https://www.hcch.net/en/instruments/conventions/status-table/?cid=71.
133 Ibid. The signatories are: Austria, Belgium, Cyprus, Czech Republic, Finland, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Monaco, Netherlands, Poland, Portugal, Switzerland, and the United Kingdom. Note, however, that it is not yet in force in Italy, Ireland, Luxembourg, the Netherlands, Poland, and most of the United Kingdom (all but Scotland). The Netherlands, like England and Wales apply the Convention though they have not ratified it. The Convention is in force in Estonia which is not a signatory but rather acceded to the Convention.
135 See https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&clang=_en.
136 The Protection of Adults in International Situations, supra n 131 at 11–12.
137 Arts 14 and 22.
138 Arts 17 and 25.
139 C van Overdijk, “England and Wales” in Frimston et al supra n 18 at 11.99.
140 Ibid, at para 11.100.
141 As Art 5(2) only discusses Contracting States.
142 SC 2000 Protection of Adults, Conclusions and Recommendations para 1 (15 November 2022) available at https://assets.hcch.net/docs/06db03d0-812c-42fb-b76d-4e6e05a91b3b.pdf (hereinafter: SC Recommendations). It seems this call is falling on willing ears within the EU, where many echo it, including importantly, the European Commission which, has for years promoted the ratification of the Convention by all Member States. According to the proposed regulation (2023/0169 (COD) Proposal for a Regulation of the European Parliament and of the Council on Applicable Recognition and Enforcement of Measures and Cooperation in Matters Relating to the Protection of Adults (2 June 2023), available at: https://data.consilium.europa.eu/doc/document/ST-10108-2023-INIT/en/pdf), all member states would be obliged to be or become (within two years) parties to the Convention. See Pietro Franzina, “European Commission Proposes Decision and Regulation on the Protection of Adults” EPIL (1 June 2023), available at: https://eapil.org/2023/06/01/european-commission-proposes-decision-and-regulation-on-the-protection-of-adults/ and the EC press release available here: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_2955. For part of the background leading to this recommendation see S Ousta Doerfel, “Adults without Borders – European Parliament Approves Resolution to Harmonise Measures to Protect Vulnerable Adults” (2017) Elder Law Journal 231, 233–35.
143 Eg, regarding the term “habitual residence,” see ‘Conclusions and Recommendations’ ibid, para 2, or the management of intertemporal issues stemming from a change in habitual residence, see ibid, paras 18–22.
144 CGAP 2023 Conclusions & Decisions (March 2023), paras 30–31, available at https://assets.hcch.net/docs/5f9999b9-09a3-44a7-863d-1dddd4f9c6b8.pdf.
145 Supra n 142 at paras 67–76. The Review Special Commission considered Prel Doc No 12 of October 2022 (revised version) on the possible amendments to the 2000 Protection of Adults Convention, see https://assets.hcch.net/docs/4db77314-1b1c-4723-b514-47aa843822c8.pdf.
146 Supra n 144 at para 33.
147 Supra n 144 at para 31.
148 Text infra preceding n 164.
149 BGB s 1901a-c.
150 Art 15. But see SC 2000 Protection of Adults, Advance Directives within the Scope of the 2000 Protection of Adults Convention (Prel Doc No 6 of April 2022) paras 34–38, available at https://assets.hcch.net/docs/a7ffa46d-a1bd-4a75-a1a6-fd939da97e60.pdf.
151 Art 41.
152 A Ruck Keen, “Hague 35: Private Mandates and Other Anticipatory Measures” in Frimston et al supra n 18 at para 9.24.
153 Unless another choice of law was made, according to Art 15(2).
154 Art 15(1). See also Ruck, supra n 152, at para 9.28.
155 Ruck, ibid para 9.23. Ruck also notes that the certificate of capacity mechanism, discussed in Art 38, is irrelevant for private mandates.
156 SC Recommendations, supra n 142 at paras 24–25; Prel Doc No 6, supra n 150 at para 51.
157 Though this was not the view of the Review Special Commission (supra n 142 paras 72–73) or CGAP (supra n 144 at para 33).
158 Swiss Civil Code, Art 374; R Aebi-Müller, M Magliana, and A Ward, 'Switzerland' in Frimston et al supra n 18, para 23.25.
159 Swiss Civil Code, Art 378(2); Aebi-Müller et al, ibid, at para 23.25.
160 s 284c(1) ABGB; A Perscha and R Frimston, “Austria” in Frimston et al supra n 18, paras 17.35–17.39.
161 J Mrazek and A Ward, “Czech Republic” in Frimston et al ibid para 18.13.
162 Lagarde, supra n 77 at para 90.
163 SC Recommendations, supra n 142 at para 22. See also SC 2000 Protection of Adults, Application of the 2000 Protection of Adults Convention to ex lege representation (Prel Doc No 5 of October 2022 (revised version)), available at https://assets.hcch.net/docs/3d623cf4-2322-4b9e-9d9c-52df85eec95f.pdf.
164 This proposed solution would also fit the instructions of the SC, see SC Recommendations, supra n 142 at para 42, regarding the use of Central Authorities for cooperation and the aversion, in para 70, to adding a designated rule for ex lege representation.
165 Art 28.
166 This issue is currently not addressed by the Convention and is unlikely to be addressed by it, but may be promoted by supplementary tools, particularly those of the EU. See C Fountoulakis, G Mäsch, E Bargelli, P Franzina, and A Ward, Response of the European Law Institute to the European Commission's Public Consultation on the Initiative on the Cross-Border Protection of Vulnerable Adults (European Law Institute January 9, 2023) 17–18.
167 Lagarde, supra n 77 at 52.
168 Ibid at 53.
169 Art 4(1)(f).
170 Art 20.
171 Ibid, Art 22. See also AR Fagan, “An Analysis of the Convention on the International Protection of Adults” (2002) 10 Elder Law Journal 329, 343, 348–49.
172 Eg, in cases where an adult migrated or was sent to a country where care is more affordable, as discussed above surrounding and in n 53.
173 Art 22(1).
174 Art 22(2). For more detail see supra D3.
175 Art 23.
176 Art 25(2).
177 Art 25(1).
178 See similarly, Frimston, supra n 2 at 234.
179 See particularly Arts 9 and 11 of that Convention and guidance on avoiding delays, see Prel Doc No 12 of August 2023 – Delays in return process under the 1980 Child Abduction Convention, available at https://assets.hcch.net/docs/f672f082-bed0-4679-9840-ad857d0d9411.pdf.
180 P Franzina and J Long, “The Protection of Vulnerable Adults in EU Member States” in C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 106, 161.
181 Along the lines of Arts 5 and 7 of Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters. See also C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 4. Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2016/581388/EPRS_STU(2016)581388_EN.pdf
182 I Curry-Sumner, “Vulnerable Adults in Europe” in C Salm, Protection of Vulnerable Adults – European Added Value Assessment (EU, 2016) 18, 58.
183 SC Recommendations, supra n 142 at para 32.
184 Similar suggestions were made by Frimston, supra n 2 at 232–33, though based on more practical and less theoretical grounds.
185 Special Commission Conclusions & Recommendations, supra n 142 at paras 13–14.
186 Ibid.
187 See, eg, the two-tier approach proposed in The Protection of Adults in International Situations, supra n 131 at 28–45.
188 See discussion of Sweden, Canada and Israel above. For a detailed, state-by-state discussion of the insufficiency of the rules in large parts of the world, see Part III in Frimston et al, supra n 18.
189 R Frimston, “The Cross-Border Protection of Adults: Hague 35 Non-Contracting States”, in Frimston et al supra n 18, para 6.09. For the Netherlands, see ibid para 6.08.
190 Ibid para 6.08.
191 “Rabbi Ben Ezra” supra n 1.
192 The Protection of Adults in International Situations, supra n 131 at 8–9 and 11.