powers-attorney-advance-directives-incapacityTo 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) – adrian@adward.co.uk, 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.