JURISDICTIONAL REFERENCE GUIDE -QUESTIONNAIRE TEMPLATE

Introduction:

This questionnaire is about the way your legal system deals with adults who by reason of an impairment or insufficiency in their personal faculties are not, or may not be, in a position to protect their interests or otherwise exercise legal capacity.

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Jurisdiction:

[insert Jurisdiction]

Name of Lasting Power:

Legislation creating the Power:

Weblink for legislation:

Healthcare decisions:

Weblink for Guardianship Office:

SECTION A: Domestic law

  1. Type of system
  1. What type of legal system exists in your State (civil law, common law, hybrid or other)?
  1. Are issues relating to persons who lack capacity dealt with in a specialist court or as part of the general court system?
  1. Does your system include the role of a notary public (whether civil or common law), and when is it necessary to use this service?
  1. Legal capacity of adults
  1. Please list the sources of domestic law in your State dealing with adult protectionand legal capacity (whether through legislation or civil/family code) including any relevant secondary sources of law.
  1. What are the causes determining the legal capacity of adults in national law and how is legal capacity assessed?
  1. Systems of adult protection
  1. What are the systems in place for the protection of adults established by national law (guardianship/curatorship and/or analogous institutions)?
  1. Does your domestic law permit the court or an administrative bodyto make orders or decisions about:
  1. Does your domestic law permit the appointment of another person (such as a guardian, curator, receiver or deputy) to make decisions on behalf of an incapacitated adulton the following matters:
  1. How are representatives (such as a guardian, curator, receiver or deputy) appointed, registered and/or monitored in your jurisdiction?Who carries out this function?
  1. Can the authority of a representative (such as a guardian, curator, receiver or deputy) be revoked or terminated? If so, how is this achieved and who carries out this function?
  1. Does the authority granted to a representative (such as a guardian, curator, receiver or deputy) automatically provide authority for that person to obtain a copy of the Will or Testament of the incapacitated person? If not, how can the representative obtain such authority?
  1. Does the authority granted to a representative (such as a guardian, curator, receiver or deputy) automatically provide authority for that person to take over any trustee function(s) held by the incapacitated person? If not, is there a separate document or procedure available for such authority to be granted?
  1. Powers of representation
  1. Does your national law have provision for powers of representation that do not cease to be valid in the event of incapacity or take effect upon incapacity (such as a continuing/lasting/durable/enduring powers of attorney)for the following:
  1. The administration, conservation or disposal of the incapacitated adult’s property; and
  1. The incapacitated adult’s personal welfare/healthcare.

If so, can this be accomplished in a single document or are two separate documents required?

  1. If soplease specify:
  1. the name of the power of representation;
  2. the requirements (if any) that must be satisfied;
  3. the applicable fees before the power can be exercised; and
  4. whether the power is issue specific or of wider general application.

SECTION B: Private international law and situations involving a foreign element

1.Does your State have a separate private international law code? If so please include the web address for this, if available.

2.Has the Convention on the International Protection of Adults (Hague 2000) been ratified by your State?If so please provide the contact details of the Central Authority designated by your State to discharge the duties imposed by the Convention.

3.In which circumstances involving a foreign element would the local court hold that it had jurisdiction, e.g. habitual residence, domicile, nationality, presence in state, situs of property?

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NOTE: If your State has ratified the Convention please ignore subsequent questions 4, 5, 6 and 7 of Section B save to the extent that the law of your State makes specific provision that might be different from the Convention.

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4.If local jurisdiction applies, which internal law is applicable, e.g. your State, habitual residence, domicile, nationality, situs of property?

5.Are the following powers of representation duly made under foreign law accepted, and are they also enforceable, in your State:

  1. Powers of representation for economic and financial matters; and
  1. Powers of representation for personal welfare/healthcare.

6.Are the following decisions by a court or administrative body made in a foreign jurisdiction recognised and enforceable in your State:

  1. Appointment of a representative(such as a guardian, curator, receiver or deputy) to deal with the administration, conservation or disposal of an incapacitated adult’s property;
  1. Appointment of a representative (such as a guardian or deputy) to deal with the personal welfare/healthcare of an incapacitated adult;
  1. Decision authorising the making of a new Will or Testament on behalf of an incapacitated adult; and
  1. Decision authorising the making of a gift (other than for minor amounts) on behalf of an incapacitated adult?

7.How may the following situations be dealt with for an incapacitated adult with connections to another jurisdiction:

  1. Withdrawal of money from a bank account situated in your State;
  1. Sale of a home or other property in your State;
  1. Family dispute as to the care or residence of an adult currently resident in your State (e.g. whether to return the adult to another state).

Section C: Further issues and sources of information

  1. Are there any other issues relating to adult protection and your State, which you would wish to tell us about, that have not been specifically asked about in this questionnaire?
  1. Please list any websites that provide in respect of your State:
  1. Legislation and secondary sources of law concerning mental capacity and adult protection
  1. Guidance on the law and procedure that applies to mental capacity and adult protection.
  1. A list of solicitors/notaries public/ advocates or lawyers who are appropriately skilled and willing to provide services in relation to adult protection.

STEP Mental Capacity SIG – Jurisdictional Reference Guide –[insert jurisdiction]

Property of STEP (The Society of Trust and Estate Practitioners), Artillery House (South), 11-19 Artillery Row, London SW1P 1RT, United Kingdom.

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