EC proposes new rules to protect people who have lost mental capacity
The European Commission (EC) is proposing new cross-border rules to protect people who have lost mental capacity, with the UK under pressure to follow suit.
This follows 12 years of advocacy from the global membership body STEP on the issue.
The EC has recently proposed new rules to protect adults in cross-border cases when they move within the EU. The proposals cover adults who are not able to protect their own interests because of an impairment or lack of capacity.
STEP is calling for the UK to mirror these rules in its legislation to ensure that there are no barriers to people in the UK from benefiting from this change.
The people concerned or their representatives may need to:
Manage assets or real estate in another country
Seek medical care abroad, or
Relocate to a different EU country
Currently, member states’ laws often conflict with each other, leading to legal uncertainty and lengthy proceedings. These new rules would help resolve this.
“This welcome announcement comes 12 years after STEP first started making the case for change to EU law,” said Simon Hodges, Head of Profession at STEP:
“If EU law is changed to introduce these rules, it would establish a European Certificate of Representation. This would improve the quality of life and circumstances of tens of thousands of people.
Such legislation would give people peace of mind that if they lose capacity, they have control over how their health, home and assets are managed.
It will take some time before this becomes EU Law and is then introduced. Nevertheless, it is a huge step forward and achievement for STEP, and its ally the European Law Institute, in an EU context. We are particularly grateful for Richard Frimston TEP’s hard work over many years in achieving this result.”
The European Union (EU) has recognised that:
Cross-border mental capacity is not a family matter and therefore the European Council will vote on this by majority, not unanimity, and
All member states need to ratify the relevant part of the Hague Convention (HCCH35)
The EC proposals would introduce a European Certificate of Representation, which would make it easier for representatives to prove their powers in another member state.
STEP said they have worked closely with the European Law Institute (ELI) in calling for these reforms, with STEP members co-leading the project that led to the 2020 report that stated that more is needed to protect adults in such situations internationally. This report has become the basis for many of the EU’s proposals in this area, the membership body added
In the meantime, we STRONGLY recommend our clients with assets in Spain arrange Spanish Powers of Attorney and if resident in Spain, UK Powers of Attorney for Property and Finance also.
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