Powers of attorney and advance directives for incapacity
To each citizen of Europe: planning for incapacity
Have you made arrangements for how you will be looked after and your property and finances managed if you become incapable of doing so yourself? Will those arrangements ensure that your wishes are respected? Will they respect your individuality and values? Will you be protected from their misuse?
As citizens of Europe we all have rights to self-determination. These are our rights to manage our lives and decide for ourselves. They include the right to manage and spend our own money, and to manage our property. They include our right to decide personal matters, ranging from daily decisions about what to wear and to eat, and where to go, through to major decisions about healthcare, where to live, which people to have close in our life, and so on.
If you lose the ability to deal with some or all of these things, there are two possibilities. The first is that arrangements that you have put in place will cover the position. These are “voluntary measures”. The second possibility is that measures not of your own making are put in place by legal procedure or by operation of law. These are “involuntary measures”.
In accordance with the principle of self-determination, the Council of Europe recommends that member states give voluntary measures priority over involuntary measures. The voluntary measures most commonly used in 2009, when the Committee of Ministers adopted its recommendation promoting self-determination, were powers of attorney and advance directives, and this is reflected in its title: Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity.
Recommendation CM/Rec(2009)11 was a pioneering instrument. The development of voluntary measures across Europe at the time was uneven and variable, although wherever they were available, ever-larger numbers of people used them. Further information on planning and arrangements for future incapacity can be found in the explanatory memorandum which accompanies CM/Rec(2009)11. The European Committee on Legal Co-operation (CDCJ) commissioned a review of the follow-up action by member states of the Council of Europe in relation to the implementation of the recommendation. This Report, entitled Enabling citizens to plan for incapacity - a review of follow-up action taken by member states of the Council of Europe to Recommendation CM/Rec(2009)11, was prepared by Mr Adrian D. Ward (Scotland, United Kingdom) – [email protected], and published in June 2018 in accordance with the decision of CDCJ (92nd meeting, 22-24 November 2017). The report includes the author’s proposals and suggestions for future action.
The CDCJ continues to raise awareness to Recommendation CM/Rec(2009)11 and support its implementation in members states.
SELF-DETERMINING ARRANGEMENTS FOR FUTURE INCAPACITY: CONTINUING POWERS OF ATTORNEY AND ADVANCE DIRECTIVES
Self-determination is about taking control of all aspects of your life and ensuring that the people who care for you have your best interests at heart, and that they act in accordance with your wishes. It of course covers decisions about property, money and personal welfare. It also includes so much more: for example making decisions about when to seek help on health care, and whether to accept particular medical treatments that might be offered, or arranging to visit the dentist, finding out about pensions and benefits, and claiming them, knowing when your rights are being infringed or denied and doing something about it.
For all of us there is a risk of being unable to do some or all of these things without support, or at all. At an extreme, a sudden illness or injury could put you into a coma, perhaps with permanent brain damage after that. More commonly, ageing conditions can reduce our ability to act and decide for ourselves. Mental illness can do the same. There can be other causes.
By setting up a "continuing power of attorney", you can decide who should support you, and should act and decide for you. You can say what you would want them to do, and how you would want them to do it. Others must accept the acts and decisions of the person you have chosen, as if they were your own acts and decisions. There are two types of continuing power of attorney, under which you are the granter and the person whom you appoint is the attorney:
- Continuing power of attorney in economic and financial matters. Here you will want someone to help with your finances, or manage your property, either now or in the future. You might prefer to have your own choice of arrangements, and to choose who should operate them.
- Continuing power of attorney in health, welfare and other personal matters. Here you will want a trusted person to make arrangements and take decisions to cover these more personal matters, if you should become unable to deal with them yourself.
As well as appointing someone, you can give direct instructions in some matters. You might want to make a statement to apply in future situations where it might otherwise become difficult or impossible for other people to find out what you want. You might want to record your wishes and preferences. Or you might want to give binding instructions. All such arrangements are advance directives.
Safeguards are needed to fulfil the principle of self-determination under all such arrangements. Your own true will and preferences need to be respected. Changes in your will and preferences need to be provided for. Legal effectiveness needs to be ensured. You need to be protected from possible abuses of such arrangements. Much of the Report on the review of follow-up action to Recommendation CM/Rec(2009)11 covers the developing ways in which such issues are being tackled. These developments are largely citizen-led. Subject to differing national cultures, they are all about choices. Many of them new choices. Choices for you.
ENABLING CITIZENS TO PLAN FOR INCAPACITY: MATTERS FOR LAWYERS, POLICY MAKERS, AND LEGISLATORS
A wealth of information and comment was provided by member states who contributed to the review. They did so mainly by completing questionnaires. The analysis of the replies formed the basis for the Report on the review of follow-up action taken by member states of the Council of Europe to Recommendation CM/Rec(2009)11. This information is all made freely available, to help shape improved practice now, and to shape future law reform in compliance with all relevant developing human rights norms.
- Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity and explanatory memorandum (Council of Europe Committee of Ministers website)
- Also available in PDF version as Publication
- Enabling citizens to plan for incapacity - Report on a review of follow-up action taken by member states of the Council of Europe to Recommendation CM/Rec(2009)11