Following extensive advocacy efforts by ENIL and allies, a new EU regulation will create a legal entitlement for the recognition of supported decision-making when moving between countries. A link to required assistance needs means that personal assistance could become portable too.
By Florian Sanden, MSc, BA
For over two years, ENIL has been advocating against the plans of the EU to create a portability of guardianship in cross-border situations. Instead, we have been pushing for a portability of supported decision-making.
This May, the European Parliament, the national governments and the European Commission reached an agreement. Our advocacy campaign was successful. The new regulation on the protection of adults (the regulation) will create a legal entitlement of disabled people who are users of supported decision-making to have their arrangements recognised when moving to a new country. The regulation which will probably enter into force next year, links the exercise of supported decision-making to necessary assistance requirements which open a door to a cross-border portability of personal assistance.
This success was possible due to a strong cooperation between ENIL, EDF and a coalition of further organisations: Inclusion Europe, Mental Health Europe, the Vaildity Foundation and Age Platform. Together we were able convince relevant Members of the European Parliament and some national governments of our position. Through cooperation, this advocacy coalition was able to achieve this breakthrough.
Guardianship in the original regulation on the protection of adults
According to article 2 (1) on the scope, the regulation is to “apply in civil matters concerning the protection in cross-border situations of adults who … are not in a position to protect their interest”.
The opening paragraph carries the clear mark of the guardianship law the regulation originally was.
In the original Commission proposal “matters” authorities could take to “protect” an adult were defined for example as “guardianship”, “curatorship” and “the placement of an adult in an establishment.”
Recognising the portability of guardianship in cross-border situations would have created an unsettling new instrument of depriving disabled people of their legal capacity.
In the amendments we produced first individually as ENIL and then used to push for high quality joint amendments with our allies we proposed to replace all measures that could deprive a person of their legal capacity. In our individual amendments, we recommended to replace “the determination of incapacity” with “the determination of supported decision-making arrangements”. In our joint amendments that changed to “any form of supported decision-making regime”. Also, we recommended to simply delete all measures that can deprive a person of their legal capacity.
Supported decision-making in the compromise regulation
In the revised regulation, the definitions of the terms “matters” and “protection” have been completely changed.
According to article 2 (3), matters refer to “measures to support an adult in exercising his or her legal capacity”. According to article 3 (1a) “Protection” means “representation, support or other measures that enable an adult to exercise their legal capacity through supported decision-making”.
Article 2 needs to be read in conjunction with several recitals which had substance. Recital 10a clarifies that the regulation should be applied consistently with the UN CPRD, “in particular with its Articles 3,9, 12, 13 and 19.” Article 12 grants disabled people the right to equality before the law and to supported decision-making. This article links the regulation to General Comment No 1 on the right to legal capacity which explains supported decision-making in detail, including the voluntary initiation and termination of any arrangement.
Recital 10a specifies that “Member States are to respect the equality of adults before the law and their right to enjoy legal capacity on equal basis with others … with the support they may require”.
Recitals 12 and 14 prepare articles prepare article 2 by stating that “protection should be understood to include support to adults in decision-making or exercise of their legal capacity and that “measures” “should primarily encompass those aimed at supporting adults in exercising their legal capacity”.
Thus, there are strong stipulations in the regulation that disabled people are entitled to supported decision-making in cross-border situations and that the decision-making should function as laid down in UN CRPD article 12. General Comment No 1 which lays down the gold standard on supported decision-making is the authoritative guidance for article 12.
Alternative means of communication at court
Court proceedings can be inaccessible for disabled people because typically only the spoken and written word are accepted as acceptable means of communication. For persons who are non-verbal or have speaking impairments participation without an intermediary becomes impossible.
The regulation opens up exciting new possibilities. According to recital 27, legal “proceedings directed to the protection of an adult should … be guided by the view expressed by the adult”. To enable the adult to express their views freely they should be given “the opportunity to participate by means of technical equipment, remotely, as well as, communication by non-conventional methods.”
This stipulation opens up the possibility of the use of alternative means of communication at court which would be a major innovation in favour of accessibility. This precedent, could lead to a greater use also for domestic proceedings.
Will and preferences
Substituted decision-making, e.g. guardianship, is guided by the principle that a figure of authority takes decisions that are in the best interest of a person. In supported decision-making the focus switches to the will and preferences of the person. The regulation follows this standard.
According to recital 27, in court proceedings “due weight has to be given to the adults will and preferences”. For cases in which direct communication is not possible, the regulation establishes a procedure for the determination of will and preferences which is accepted by parts of the Independent Living Movement: “by consulting persons close to the adult or through a representative ad litem or by taking into account the adult`s social circle, previous declared wishes or other sources of information that can reveal preferences.”
Providing perspective
Human rights documents provided by the UN usually don`t have direct legal applicability. Only few countries, for example Norway, have taken this step. The regulation on the protection of adults is secondary legislation. It is directly applicable and enforceable. This means that one can rely on it when interacting with public authorities or notaries. It creates real legal entitlements. Should anyone try to deny the norms expressed therein, it is possible to claim the recognition of ones supported decision-making arrangements in court. Once in force, the regulation will reduce the risk of disabled people to become victims of deprivation of legal capacity when moving between countries. It will open up new possibilities for mobility within the EU.
Personal assistance, peer support and CILs in the regulation
Currently, there is no automatic access to the personal assistance schemes when disabled people move to another country which is a major barrier for mobility within the EU.
The regulation contains a stipulation which could change that.
The recital 10a states that “assistance and other forms of assistance that exist in the law of the Member States are available to adults. For example, various persons and bodies may be designated to support, assist, or represent adults who need assistance”.
In this context “assistance” can refer to personal assistance. The government of Cyprus for example explained that it considers this to be the case. Recital 10a could refer especially to assistants who provide both support with every day tasks like getting dressed and washing but also take the role of decision-making supporters. It could also refer to peer support or the support through a Centre for Independent Living.
Further work to ensure this interpretation becomes the standard will be required. However, this legal precedent creates useful material to argue that personal assistance is covered.
Costs covered
A main problem for the access to the personal assistance scheme of another country are the costs. Reading the regulation in combination with recent developments in supported decision-making law could oblige countries to find ways to cover the costs.
According to article 31 on the “Costs of implementing a measure in another Member State”, the state will have to cover the costs of measures to be implemented. It tasks member states to cooperate with which other to decide which country will cover the costs.
The new Maltese legal capacity law for example stipulates that persons providing decision-making support will receive a fee for their work. By extension, personal assistants who are also decision-making supporters would be paid for their work too.
The European Certificate of Support and Representation
The regulation introduces a European Certificate of Support and Representation. The Certificate is a document which people who wish to take their support with them to another country will need to obtain in their home country. The Certificate will outline the details of the decision-making arrangements. When produced in the new country, authorities and notaries will be legally obliged to recognise the content.
Legal vulnerabilities
Despite all the warranted good news, it is important to also point out possible weaknesses.
First of all, legal experts are warning that some national courts who are opposed to supported decision-making will not apply the letter or the spirit of the regulation. The fact that judges are prepared to break the law to deny disabled people their rights, because of ignorance is unacceptable.
Second, the regulation is only applicable when both countries have supported decision-making. However, 13 EU countries do foresee supported decision-making in their laws. Recital 27 allows authorities to refuse a measure if it was taken “without the adult having had an opportunity to be heard”. The recital tasks authorities to guide proceedings by article 3, 9, 12, 13 and 19 of the UN CRPD. Recital 22 allows authorities to adjust measures to new circumstances. These stipulations should allow countries that do foresee supported decision-making to change substituted decision-making arrangements taken in another country.
Third, it was legally not possible to eliminate all problematic content. Article 2 on scope still refers to “the measures set out in Article 3 of the HCCH 2000 Protection of Adults Convention” which are for example “guardianship”. Recital 10a clearly states that as far as disabled people are concerned, the UN CRPD applies. Will lawyers and courts recognise this hierarchy in practice?
Fourth, it was not possible to fully disarm the highly problematic article 21 on placements. In the original proposal, the text stated “if an authority of a Member State contemplates the placement of the adult in … an establishment or other institution”.
In our joint amendments, ENIL pushed for an amendment to this article clearly stating that the regulation cannot be used to place a disabled person in an institution under any circumstances. We pushed for a redefinition of the term “placement” so that it would refer to the provision of services such as personal assistance”.
In the revised regulation, the terms “establishment” and “institutions” have been eliminated as we hoped. What the term “placement” might refer to, is now left open. In practice this could mean, that authorities could both apply a placement in an institution but also providing personal assistance.
When interpreting article 21, authorities should take into account recital 10a which should in turn prevent any institutionalisation.
In addition, there is recital 33a which establishes additional preventative mechanisms.
First, the authority of the Member State in which the placement would be implemented has the right to oppose the request.
Second, the authority requesting the placement will have to file a report on the adult and state reasons for the proposed measure which has to include “the views of the adult concerned, in light of Article 19 of the UN CRPD.” The recital establishes an obligation to take the wishes into account: “Best efforts should be made to ensure that the contemplated placement respects the will and preferences of the adult”.
Responsibility is both placed in the hands of national authorities and disabled individuals. Authorities should strictly follow these provisions and apply high standards to the reports on the adult. For disabled people, placements should not be allowed under any circumstance. It will be up for disabled people to strongly utter the wish that they do not want to be institutionalised.
Next steps
The compromise regulation is an important advocacy success. It will improve the lives of many disabled people. It will be a game changer when it comes to the cross-border recognition of legal capacity and it could have many additional positive effects: The portability of personal assistance, the introduction of supported decision-making in additional countries, a widespread permission of alternative means of communication at court.
However, our work is not finished and many challenges remain.
First of all, a close monitoring of the implementation is paramount. Should member state fail to apply the letter and the rights affirming spirit of the regulation, steps will have to be taken. On the one hand, strategic litigation could provide the means to ensure a positive implementation will take place.
Second, we need legal capacity reforms in the member states. Governments and the European Commission have made it clear that for the foreseeable future there is no political will to do this at the EU-level. Our national members will have to push for national reforms.
Third, there will need to be strong awareness raising with national authorities, with lawyers, judges and notaries and with disabled people. The first group will need to be trained to correctly apply the regulation. Disabled people and their supporters and allies need to be made aware of their new rights.
The regulation is providing a very good starting point for a game changer in the area of legal capacity law in Europe. The implementation will be a marathon which begins now.
