In many jurisdictions the concept of 'capacity' is used to determine when and how 1 This article from Family & Law is published by Boom juridisch and made available to anonieme bezoeker * The authors would like to thank dr. Veroni Eichelsheim for her comments on an earlier draft of this article.
The author owes a huge debt of gratitude to Alzheimer Nederland for awarding her a Fellowshipgrant which has enabled her to visit all four countries as part of the comparative study central in this article. In addition, the author would like to express her thanks and gratitude to prof. Regina prof. Volker Lipp, prof. Jens Scherpe and prof. Frederik Swennen. 2 Recommendation CM/Rec(2009)11, p. 9. 3Recommendation CM/Rec(2009)11, p. 9.
With a continuing power of attorney adults may provide for a future period of incapacity. The misuse or abuse of CPAs is a growing concern in many countries, increasingly the question is asked whether CPAs should not be furnished with more safeguards. Article 12(4) UNCRPD requires states to ensure appropriate and effective safeguards are in place to prevent abuse. This article focuses on the question what appropriate safeguards preventing the misuse and abuse of CPAs are. The article starts with an overview of the research on the risk of misuse and abuse that to date has been conducted. This information is subsequently used to operationalise the three categories of safeguards mentioned in article 12(4) UNCRPD, providing directions as to how appropriate safeguards might look like. Based on these directions, the safeguards implemented in five European countries have been studied with a view to providing insight into how these countries have tried to meet the requirement to ensure appropriate safeguards are in place. It is concluded that more can be done to ensure adults who want to be involved in the running of their affairs are given the opportunity to do so. In addition, attorneys should be made aware of their rights and responsibilities upon entry into force of the CPA and provided with the necessary support.
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