The Hague Convention of 13 January 2000 on the International Protection of Adults (the “Convention”) was recently ratified by Belgium and entered into force on 1 January 2021. The Convention applies to the protection in international situations of adults who, by reason of an impairment in or insufficiency of their personal faculties, are not able to protect their own interests. The provisions of the Convention apply to powers of representation agreed after that date. They slightly modify the legal principles governing them to ensure their effectiveness across borders.
Until 31 December 2020, the effectiveness of such a power of representation depended on the recognition a particular state gave to this type of mandate. The Convention ensures that a “power of attorney”, “mandat de protection future” or similar instrument has the force of law in another Contracting State, even where that State does not have an analogous instrument in its domestic law. This provides the adult with the assurance that arrangements previously made for the management of his or her affairs will be respected in other Contracting States. A power of representation aims to anticipate possible incapacity by designating, without the intervention of a judge, one or more persons who will manage all or part of the principal’s assets and will be responsible for carrying out the principal’s personal choices or final wishes.
Since 1 January 2021, the law applicable to the existence, extent, modification and termination of such a power of representation are found in the provisions of the Convention. The Convention allows the parties to designate, in a limited but explicit way and in writing, the law of one of the following states:
- The state of which the adult is a national;
- The state of the adult’s previous habitual residence; or
- The state where the adult’s property is located with regard to such property.
It is therefore possible to apply to the management of an asset the law of the State where the asset is located.
In the absence of a choice of law, the existence, extent, modification and termination of the power of representation are governed by the law of the state where the adult has his habitual residence at the time the agreement or unilateral legal act was entered into.
The effect is that, if a power of attorney is drawn up in Belgium by an Italian residing in Belgium, in which he designates his daughter as his representative, the acts of management which the latter will perform in respect of property belonging to her father in Tuscany will be recognized in Italy because Italy has ratified the Convention. If, on the other hand, the father owns a property in Madrid, his daughter’s representative powers would be subject to the Spanish rules of private international law, since, curiously enough, Spain is not (yet) a Contracting Party to the Convention.