Are individuals advised to create documents or take other steps in view of their possible mental incapacity and, if so, what are the main features of the advisable arrangements?
Unlike in England, India does not have the concept of enduring power of attorney – an authorisation given to an individual to act on behalf of the grantor, if the grantor is incapacitated. Per the Indian law, if the grantor is mentally incapacitated, then the power of the attorney granted to any person stands revoked. Thus, in such a scenario, the only avenue left is to undertake matters of succession planning as early on as possible and make it flexible enough to adapt to changing circumstances.
People with mental incapacity are placed under a guardianship. The Bulgarian Family Code provides that the guardian shall manage the property of the person placed under guardianship with good care and in his or her best interests.
The regime under which such people are placed depends on the degree of their illness. The Law for Individuals and Family provides for two categories of legal incapacity: (a) plenary guardianship, which means that the adult’s legal capacity is entirely removed and the person is left with no legal powers; and (b) partial guardianship, which means that the adult’s legal capacity is limited rather than removed.
The person who is placed under guardianship must live with his guardian, unless the law requires that he/she should be settled somewhere else (e.g. due to special medical needs, etc.).
Individuals are advised to make an enduring power of attorney, in which give one or more persons authority to make personal care decisions and financial decisions on their behalf in the event that they lose capacity.
Following the commencement of the Assisted Decision-Making (Capacity) Act 2015 individuals will also be able to enter into various types of assisted decision making agreements depending on their level of capacity, and will also be permitted to enter into advanced healthcare directives which will allow them to outline their wishes and preference concerning healthcare treatment in the event that they lose capacity.
Yes. Individuals are advised to execute documents to deal with both medical and financial decisions in the event of mental or physical incapacity. The names and forms of these documents differ by state, but the concepts are the same. The first document, often referred to as a ‘Living Will’, allows an individual to provide specific instructions about his or her medical treatment in the event of incapacity; for example, an individual can direct that he or she does not wish to have a feeding tube to be kept alive. The second document, often referred to as a ‘Health Care Proxy’, allows an individual to appoint someone to make medical decisions on his or her behalf (to the extent not already provided for in the living will) if he or she is unable to do. Finally, a durable power of attorney is recommended to name an agent to act on a person’s behalf with respect to his or her financial matters. Some states require that this document be effective immediately, but in most states there is an option to have the power become effective upon the principal’s incapacity.
Because the Civil Code organises the protection of persons losing capacity, nothing is provided allowing the individual to make his/her own arrangement in view of his/her mental incapacity and decisions about medical treatment.
It is however the authors’ opinion that because nothing in the law prohibits the possibility for an individual to provide his/her wishes it is suitable to prepare such a document. One may expect that the mentality will shift in the future encouraging the French judge considering such a document as binding.
A “mandate for future protection” (Mandat de protection future) can however be drawn up (either under the form of a notarial deed or a private document) in the view for the “mandator” to appoint in advance one or more persons (agent) to represent him. At the moment the mandator will no longer be able, physically or mentally, to provide for his own interests, the agent may then act to protect the mandator’s personal and / or patrimonial interests.
Offering more flexibility, the trust remains an appropriate tool to organise the mental incapacity and other decisions despite the fact that trusts set up by French resident individuals are subject to inheritance tax at the rate of 60% if set up after 11 May 2011.
Italian law allows an individual to designate, by notarial deed, another individual as a candidate for the appointment as his/her guardian. If the appointing individual becomes then incapacitated, the competent Italian court will appoint another individual as a guardian, which assists or replaces (depending on the degree of incapacity) the incapacitated in dealing with the assets. The court can appoint an individual different from the candidate only on the ground of serious reasons.
Yes. According to a new amendment that was enacted to the Legal Competence and Guardianship Law 5722-1962, it is now possible for a person to sign a lasting power of attorney that will remain in force even in case of incapacity. Such power of attorney should be signed in accordance with the requirements of the law and should be deposited with the General Custodian.
Individuals – in view of their possible mental incapacity – may create an irrevocable power of attorney, whereby they instruct someone else to act on their behalf, as long as at the time of granting this power they had the mental capacity to do so and also that the power vested does not influence solely the grantor’s interests.
In case an individual loses his legal capacity, a guardian is appointed by the court. The guardian represents the individual’s interests and is supervised by the court.
It is highly recommended that an individual stipulates both a Patient Decree (“Patientenverfügung”) and a power of attorney (“Vorsorgevollmacht”). Thus, the appointment of a guardian that is a third person can be avoided as in this case the guardian chosen by the individual will be appointed by the court.
In a so-called ‘living will’, one can anticipate potential legal incapacity by making ‘extrajudicial protection’ arrangements. These arrangements can deal with personal matters (e.g. health matters) and/or the administration of goods. By giving a power of attorney while still capable, one can avoid a court-appointed administrator.
British Virgin Islands
The BVI does not yet enable enduring (or lasting) powers of attorney to be drawn up under its domestic laws so that (subject to a very limited exception in the Conveyancing and Law of Property Act enabling irrevocable powers of attorney to be drawn up in certain circumstances) the authority given by a power of attorney which a donor makes will terminate automatically when the donor loses capacity (or dies). When a person owning BVI property becomes incapable of dealing with such property an application to the BVI court would therefore be needed, but there are provisions in the BVI’s Mental Health Act which would enable the BVI court to recognise those appointed under foreign enduring or lasing powers of attorney.
Steps which should therefore be taken prior to losing capacity might include (in particular) the creation of appropriately lifetime trusts and/or ensuring that a co-owner or co- fiduciary will be able to take over should the person lose capacity and/or ensuring that (where appropriate) foreign enduring or lasing powers which extend to the donor’s BVI property are executed.
UAE law allows for specific legal documentation to be implemented in relation to mental incapacity, however its implementation has been practically limited to local Emirates, and the position with regards to expatriate residents is uncertain.
The definitions of mental incapacity can be found in section 94 of the Protection of Personal and Property Rights Act 1988. Under this Act, an enduring power of attorney (“EPOA”) can be granted to another person to act in relation to the donor’s property affairs, personal care and welfare if the donor becomes mentally incapable. The requirements for creating an EPOA are as follows:
- Execute an instrument appointing and EPOA in the prescribe form;
- Attach a certificate of mental incapacity;
- The instrument must be signed by the donor (or by someone directed by the donor in their presence), and by the attorney; and
- Both signatures must be witnessed by persons independent of both the donor and attorney.
Legislation is currently being considered to amend the provisions of the Civil Code relating to the judicial protection of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in position to protect their interests (Draft Law No. 958).
The main innovation of the proposed reform is the creation of the “mandate for future protection” (mandat de protection future) to allow any adult to make advance arrangements for his/her care or representation in the event of incapacity, but also for the protection of his/her children.
The Draft Law (No. 958) also includes conflict of law rules in line with those set out in The Hague Convention of 13 January 2000 on the International Protection of Adults (ratified by Monaco in 2016).
Swiss law provides for a specific power of attorney, known as the "lasting power of attorney", which allows a person of sound mind to appoint a trustworthy person in advance who will be required (i) to provide personal assistance, (ii) to manage her/his assets and/or (iii) to represent her/him in relations with third parties in case she/he becomes incompetent to look after her/his own interests. These three tasks can also be aggregated and the principal may also establish guidelines on how to perform them. Under the subsidiarity principle, such a power takes precedence over official protection measures. The principal typically designates as attorney-in-fact a trusted person such as his lawyer, his executor, a trustee, a family office or a bank.
25.1 Under English law, an individual (called the donor) may, by creating a Lasting Power of Attorney ("LPA"), give authority to one or more individuals (called attorneys) to deal with the donor's property or make decisions relevant to the donor's health and welfare if the donor loses mental capacity. One kind of LPA relates to decisions about the donor's property, and another kind of LPA to decisions about the donor's health and welfare (such as whether the donor should go into a nursing home or receive life-sustaining medical treatment).
25.2 If more than one attorney (§25.1) is appointed under a LPA (§25.1), the attorneys can be appointed to act either jointly (in which case they must decide everything together) or jointly and severally (in which case one of them alone may make a decision). The donor (§25.1) may also specify binding or non-binding preferences in a LPA. Attorneys come under the supervision of the Court of Protection.
25.3 If no LPA (§25.1) has been created by an individual who becomes mentally incapable of managing his property, an application must be made to the Court of Protection for a the appointment of a "deputy", who has a similar role to that of an attorney (§25.1) appointed under a LPA. The creation of a LPA is simpler, quicker and cheaper than such an application, and allows the donor (§25.1) to decide certain matters in advance and to choose who will be making decisions on his behalf.
25.4 An English LPA (§25.1) is, in practice, of limited relevance to a donor (§25.1) who is not living in England and whose assets are situated outside England.
In Austria one can set up a long lasting power of attorney in which one appoints a proxy who can make all these positions over all assets including bank savings, bank accounts, real estate (but then notarised signed).
A long lasting power of attorney becomes legally effective only in connection with a medical confirmation that the giver of the power of attorney is no longer legally competent. A long lasting power of attorney has to be entered in a register of powers of attorney.
In addition there is the institute of the healthcare proxy in which it can be regulated which medical treatment in the event of illness should not be carried out if and when the patient is no longer able to express his will.
The existence of a healthcare proxy (not its contents) is also recorded in a register.