CONVENTION ON THE INTERNATIONAL PROTECTION OF ADULTS
(Concluded 13 January 2000)
The States
signatory to the present Convention,
Considering the
need to provide for the protection in international situations of adults who,
by reason of an impairment or insufficiency of their personal faculties, are
not in a position to protect their interests,
Wishing to avoid
conflicts between their legal systems in respect of jurisdiction, applicable
law, recognition and enforcement of measures for the protection of adults,
Recalling the
importance of international co-operation for the protection of adults,
Affirming that
the interests of the adult and respect for his or her dignity and autonomy are
to be primary considerations,
Have agreed on
the following provisions -
chapter i -
scope of the convention
Article 1
(1) This
Convention applies to the protection in international situations of adults who,
by reason of an impairment or insufficiency of their personal faculties, are
not in a position to protect their interests.
(2) Its objects are -
a) to determine the State whose authorities
have jurisdiction to take measures directed to the protection of the person or
property of the adult;
b) to determine which law is to be
applied by such authorities in exercising their jurisdiction;
c) to determine the law applicable
to representation of the adult;
d) to provide for the recognition
and enforcement of such measures of protection in all Contracting States;
e) to establish such co-operation
between the authorities of the Contracting States as may be necessary in order
to achieve the purposes of this Convention.
Article 2
(1) For
the purposes of this Convention, an adult is a person who has reached the age
of 18 years.
(2) The Convention applies also to measures in respect of an adult who
had not reached the age of 18 years at the time the measures were taken.
Article 3
The measures
referred to in Article 1 may deal in particular with -
a) the determination of incapacity and the institution of a
protective regime;
b) the placing of the adult under
the protection of a judicial or administrative authority;
c) guardianship, curatorship and
analogous institutions;
d) the designation and functions
of any person or body having charge of the adult's person or property,
representing or assisting the adult;
e) the placement of the adult in
an establishment or other place where protection can be provided;
f) the administration,
conservation or disposal of the adult's property;
g) the authorisation of a specific
intervention for the protection of the person or property of the adult.
Article 4
(1) The
Convention does not apply to -
a) maintenance obligations;
b) the formation, annulment and
dissolution of marriage or any similar relationship, as well as legal
separation;
c) property regimes in respect of
marriage or any similar relationship;
d) trusts or succession;
e) social security;
f) public measures of a
general nature in matters of health;
g) measures taken in respect of a
person as a result of penal offences committed by that person;
h) decisions on the right of
asylum and on immigration;
i) measures directed solely
to public safety.
(2)
Paragraph 1 does not affect, in respect of the matters referred to therein, the
entitlement of a person to act as the representative of the adult.
chapter ii -
jurisdiction
Article 5
(1) The
judicial or administrative authorities of the Contracting State of the habitual
residence of the adult have jurisdiction to take measures directed to the
protection of the adult's person or property.
(2) In case of a change of the adult's habitual residence to another
Contracting State, the authorities of the State of the new habitual residence
have jurisdiction.
Article 6
(1) For
adults who are refugees and those who, due to disturbances occurring in their
country, are internationally displaced, the authorities of the Contracting
State on the territory of which these adults are present as a result of their
displacement have the jurisdiction provided for in Article 5, paragraph 1.
(2) The provisions of the preceding paragraph also apply to adults whose
habitual residence cannot be established.
Article 7
(1) Except
for adults who are refugees or who, due to disturbances occurring in their
State of nationality, are internationally displaced, the authorities of a
Contracting State of which the adult is a national have jurisdiction to take
measures for the protection of the person or property of the adult if they
consider that they are in a better position to assess the interests of the
adult, and after advising the authorities having jurisdiction under Article 5
or Article 6, paragraph 2.
(2) This jurisdiction shall not be exercised if the authorities having
jurisdiction under Article 5, Article 6, paragraph 2, or Article 8 have
informed the authorities of the State of which the adult is a national that
they have taken the measures required by the situation or have decided that no
measures should be taken or that proceedings are pending before them.
(3) The measures taken under paragraph 1 shall lapse as soon as the
authorities having jurisdiction under Article 5, Article 6, paragraph 2, or
Article 8 have taken measures required by the situation or have decided that no
measures are to be taken. These authorities shall inform accordingly the
authorities which have taken measures in accordance with paragraph 1.
Article 8
(1) The
authorities of a Contracting State having jurisdiction under Article 5 or
Article 6, if they consider that such is in the interests of the adult,
may, on their own motion or on an application by the authority of another
Contracting State, request the authorities of one of the States mentioned in
paragraph 2 to take measures for the protection of the person or property of
the adult. The request may relate to all or some aspects of such protection.
(2) The Contracting States whose authorities may be addressed as provided
in the preceding paragraph are -
a) a State of which the adult is a national;
b) the State of the preceding
habitual residence of the adult;
c) a State in which property of
the adult is located;
d) the State whose authorities
have been chosen in writing by the adult to take measures directed to his or
her protection;
e) the State of the habitual
residence of a person close to the adult prepared to undertake his or her
protection;
f) the State in whose
territory the adult is present, with regard to the protection of the person of
the adult.
(3) In
case the authority designated pursuant to the preceding paragraphs does not
accept its jurisdiction, the authorities of the Contracting State having
jurisdiction under Article 5 or Article 6 retain jurisdiction.
Article 9
The authorities
of a Contracting State where property of the adult is situated have
jurisdiction to take measures of protection concerning that property, to the
extent that such measures are compatible with those taken by the authorities
having jurisdiction under Articles 5 to 8.
Article 10
(1) In all
cases of urgency, the authorities of any Contracting State in whose territory
the adult or property belonging to the adult is present have jurisdiction to
take any necessary measures of protection.
(2) The measures taken under the preceding paragraph with regard to an
adult habitually resident in a Contracting State shall lapse as soon as the
authorities which have jurisdiction under Articles 5 to 9 have taken the
measures required by the situation.
(3) The measures taken under paragraph 1 with regard to an adult who is
habitually resident in a non-Contracting State shall lapse in each Contracting
State as soon as measures required by the situation and taken by the
authorities of another State are recognised in the Contracting State in
question.
(4) The authorities which have taken measures under paragraph 1 shall, if
possible, inform the authorities of the Contracting State of the habitual
residence of the adult of the measures taken.
Article 11
(1) By way
of exception, the authorities of a Contracting State in whose territory the
adult is present have jurisdiction to take measures of a temporary character
for the protection of the person of the adult which have a territorial effect
limited to the State in question, in so far as such measures are compatible
with those already taken by the authorities which have jurisdiction under
Articles 5 to 8, and after advising the authorities having jurisdiction under
Article 5.
(2) The measures taken under the preceding paragraph with regard to an
adult habitually resident in a Contracting State shall lapse as soon as the
authorities which have jurisdiction under Articles 5 to 8 have taken a decision
in respect of the measures of protection which may be required by the
situation.
Article 12
Subject to
Article 7, paragraph 3, the measures taken in application of Articles 5 to 9
remain in force according to their terms, even if a change of circumstances has
eliminated the basis upon which jurisdiction was founded, so long as the
authorities which have jurisdiction under the Convention have not modified,
replaced or terminated such measures.
chapter iii -
applicable law
Article 13
(1) In
exercising their jurisdiction under the provisions of Chapter II, the
authorities of the Contracting States shall apply their own law.
(2) However, in so far as the protection of the person or the property of
the adult requires, they may exceptionally apply or take into consideration the
law of another State with which the situation has a substantial connection.
Article 14
Where a measure
taken in one Contracting State is implemented in another Contracting State, the
conditions of its implementation are governed by the law of that other State.
Article 15
(1) The
existence, extent, modification and extinction of powers of representation
granted by an adult, either under an agreement or by a unilateral act, to be
exercised when such adult is not in a position to protect his or her interests,
are governed by the law of the State of the adult's habitual residence at the
time of the agreement or act, unless one of the laws mentioned in paragraph 2
has been designated expressly in writing.
(2) The States whose laws may be designated are -
a) a State of which the adult is a national;
b) the State of a former habitual
residence of the adult;
c) a State in which property of
the adult is located, with respect to that property.
(3) The
manner of exercise of such powers of representation is governed by the law of
the State in which they are exercised.
Article 16
Where powers of
representation referred to in Article 15 are not exercised in a manner
sufficient to guarantee the protection of the person or property of the adult,
they may be withdrawn or modified by measures taken by an authority having
jurisdiction under the Convention. Where such powers of representation are
withdrawn or modified, the law referred to in Article 15 should be taken into
consideration to the extent possible.
Article 17
(1) The
validity of a transaction entered into between a third party and another person
who would be entitled to act as the adult's representative under the law of the
State where the transaction was concluded cannot be contested, and the third
party cannot be held liable, on the sole ground that the other person was not
entitled to act as the adult's representative under the law designated by the
provisions of this Chapter, unless the third party knew or should have known
that such capacity was governed by the latter law.
(2) The preceding paragraph applies only if the transaction was entered
into between persons present on the territory of the same State.
Article 18
The provisions
of this Chapter apply even if the law designated by them is the law of a
non-Contracting State.
Article 19
In this Chapter
the term ‘law' means the law in force in a State other than its choice of law
rules.
Article 20
This Chapter
does not prevent the application of those provisions of the law of the State in
which the adult is to be protected where the application of such provisions is
mandatory whatever law would otherwise be applicable.
Article 21
The application
of the law designated by the provisions of this Chapter can be refused only if
this application would be manifestly contrary to public policy.
chapter iv -
recognition and enforcement
Article 22
(1) The
measures taken by the authorities of a Contracting State shall be recognised by
operation of law in all other Contracting States.
(2) Recognition may however be refused -
a) if the measure was taken by an authority
whose jurisdiction was not based on, or was not in accordance with, one of the
grounds provided for by the provisions of Chapter II;
b) if the measure was taken,
except in a case of urgency, in the context of a judicial or administrative
proceeding, without the adult having been provided the opportunity to be heard,
in violation of fundamental principles of procedure of the requested State;
c) if such recognition is
manifestly contrary to public policy of the requested State, or conflicts with
a provision of the law of that State which is mandatory whatever law would
otherwise be applicable;
d) if the measure is incompatible
with a later measure taken in a non-Contracting State which would have had
jurisdiction under Articles 5 to 9, where this later measure fulfils the
requirements for recognition in the requested State;
e) if the procedure provided in
Article 33 has not been complied with.
Article 23
Without
prejudice to Article 22, paragraph 1, any interested person may request from
the competent authorities of a Contracting State that they decide on the
recognition or non-recognition of a measure taken in another Contracting State.
The procedure is governed by the law of the requested State.
Article 24
The authority of
the requested State is bound by the findings of fact on which the authority of
the State where the measure was taken based its jurisdiction.
Article 25
(1) If
measures taken in one Contracting State and enforceable there require
enforcement in another Contracting State, they shall, upon request by an
interested party, be declared enforceable or registered for the purpose of
enforcement in that other State according to the procedure provided in the law
of the latter State.
(2) Each Contracting State shall apply to the declaration of
enforceability or registration a simple and rapid procedure.
(3) The declaration of enforceability or registration may be refused only
for one of the reasons set out in Article 22, paragraph 2.
Article 26
Without
prejudice to such review as is necessary in the application of the preceding
Articles, there shall be no review of the merits of the measure taken.
Article 27
Measures taken
in one Contracting State and declared enforceable, or registered for the
purpose of enforcement, in another Contracting State shall be enforced in the
latter State as if they had been taken by the authorities of that State.
Enforcement takes place in accordance with the law of the requested State to
the extent provided by such law.
chapter v -
co-operation
Article 28
(1) A
Contracting State shall designate a Central Authority to discharge the duties
which are imposed by the Convention on such authorities.
(2) Federal States, States with more than one system of law or States
having autonomous territorial units shall be free to appoint more than one
Central Authority and to specify the territorial or personal extent of their
functions. Where a State has appointed more than one Central Authority, it
shall designate the Central Authority to which any communication may be
addressed for transmission to the appropriate Central Authority within that
State.
Article 29
(1)
Central Authorities shall co-operate with each other and promote co-operation
amongst the competent authorities in their States to achieve the purposes of
the Convention.
(2) They shall, in connection with the application of the Convention,
take appropriate steps to provide information as to the laws of, and services
available in, their States relating to the protection of adults.
Article 30
The Central
Authority of a Contracting State, either directly or through public authorities
or other bodies, shall take all appropriate steps to -
a) facilitate communications, by every means, between the competent
authorities in situations to which the Convention applies;
b) provide, on the request of a
competent authority of another Contracting State, assistance in discovering the
whereabouts of an adult where it appears that the adult may be present and in
need of protection within the territory of the requested State.
Article 31
The competent
authorities of a Contracting State may encourage, either directly or through
other bodies, the use of mediation, conciliation or similar means to achieve
agreed solutions for the protection of the person or property of the adult in
situations to which the Convention applies.
Article 32
(1) Where
a measure of protection is contemplated, the competent authorities under the
Convention, if the situation of the adult so requires, may request any
authority of another Contracting State which has information relevant to the
protection of the adult to communicate such information.
(2) A Contracting State may declare that requests under paragraph 1 shall
be communicated to its authorities only through its Central Authority.
(3) The competent authorities of a Contracting State may request the
authorities of another Contracting State to assist in the implementation of
measures of protection taken under this Convention.
Article 33
(1) If an
authority having jurisdiction under Articles 5 to 8 contemplates the placement
of the adult in an establishment or other place where protection can be
provided, and if such placement is to take place in another Contracting State,
it shall first consult with the Central Authority or other competent authority
of the latter State. To that effect it shall transmit a report on the adult
together with the reasons for the proposed placement.
(2) The decision on the placement may not be made in the requesting State
if the Central Authority or other competent authority of the requested State
indicates its opposition within a reasonable time.
Article 34
In any case
where the adult is exposed to a serious danger, the competent authorities of
the Contracting State where measures for the protection of the adult have been
taken or are under consideration, if they are informed that the adult's
residence has changed to, or that the adult is present in, another State, shall
inform the authorities of that other State about the danger involved and the
measures taken or under consideration.
Article 35
An authority
shall not request or transmit any information under this Chapter if to do so
would, in its opinion, be likely to place the adult's person or property in
danger, or constitute a serious threat to the liberty or life of a member of
the adult's family.
Article 36
(1)
Without prejudice to the possibility of imposing reasonable charges for the
provision of services, Central Authorities and other public authorities of
Contracting States shall bear their own costs in applying the provisions of
this Chapter.
(2) Any Contracting State may enter into agreements with one or more
other Contracting States concerning the allocation of charges.
Article 37
Any Contracting
State may enter into agreements with one or more other Contracting States with
a view to improving the application of this Chapter in their mutual relations.
The States which have concluded such an agreement shall transmit a copy to the
depositary of the Convention.
chapter vi -
general provisions
Article 38
(1) The
authorities of the Contracting State where a measure of protection has been
taken or a power of representation confirmed may deliver to the person
entrusted with protection of the adult's person or property, on request, a
certificate indicating the capacity in which that person is entitled to act and
the powers conferred.
(2) The capacity and powers indicated in the certificate are presumed to
be vested in that person as of the date of the certificate, in the absence of
proof to the contrary.
(3) Each Contracting State shall designate the authorities competent to
draw up the certificate.
Article 39
Personal data
gathered or transmitted under the Convention shall be used only for the
purposes for which they were gathered or transmitted.
Article 40
The authorities
to whom information is transmitted shall ensure its confidentiality, in
accordance with the law of their State.
Article 41
All documents
forwarded or delivered under this Convention shall be exempt from legalisation
or any analogous formality.
Article 42
Each Contracting
State may designate the authorities to which requests under Article 8 and
Article 33 are to be addressed.
Article 43
(1) The
designations referred to in Article 28 and Article 42 shall be communicated to
the Permanent Bureau of the Hague Conference on Private International Law not
later than the date of the deposit of the instrument of ratification,
acceptance or approval of the Convention or of accession thereto. Any
modifications thereof shall also be communicated to the Permanent Bureau.
(2) The declaration referred to in Article 32, paragraph 2, shall be made
to the depositary of the Convention.
Article 44
A Contracting
State in which different systems of law or sets of rules of law apply to the
protection of the person or property of the adult shall not be bound to apply
the rules of the Convention to conflicts solely between such different systems
or sets of rules of law.
Article 45
In relation to a
State in which two or more systems of law or sets of rules of law with regard
to any matter dealt with in this Convention apply in different territorial
units -
a) any reference to habitual residence in that State shall be
construed as referring to habitual residence in a territorial unit;
b) any reference to the presence
of the adult in that State shall be construed as referring to presence in a
territorial unit;
c) any reference to the location
of property of the adult in that State shall be construed as referring to
location of property of the adult in a territorial unit;
d) any reference to the State of
which the adult is a national shall be construed as referring to the
territorial unit designated by the law of that State or, in the absence of
relevant rules, to the territorial unit with which the adult has the closest
connection;
e) any reference to the State
whose authorities have been chosen by the adult shall be construed
- as referring to the territorial
unit if the adult has chosen the authorities of this territorial unit;
- as referring to the territorial unit with which the adult has the
closest connection if the adult has chosen the authorities of the State without
specifying a particular territorial unit within the State;
f) any reference to the law of a State with which the situation has
a substantial connection shall be construed as referring to the law of a
territorial unit with which the situation has a substantial connection;
g) any reference to the law or
procedure or authority of the State in which a measure has been taken shall be
construed as referring to the law or procedure in force in such territorial
unit or authority of the territorial unit in which such measure was taken;
h) any reference to the law or
procedure or authority of the requested State shall be construed as referring
to the law or procedure in force in such territorial unit or authority of the
territorial unit in which recognition or enforcement is sought;
i) any reference to the State
where a measure of protection is to be implemented shall be construed as
referring to the territorial unit where the measure is to be implemented;
j) any reference to bodies or
authorities of that State, other than Central Authorities, shall be construed
as referring to those authorised to act in the relevant territorial unit.
Article 46
For the purpose
of identifying the applicable law under Chapter III, in relation to a State
which comprises two or more territorial units each of which has its own system
of law or set of rules of law in respect of matters covered by this Convention,
the following rules apply -
a) if there are rules in force in such a State identifying which
territorial unit's law is applicable, the law of that unit applies;
b) in the absence of such rules,
the law of the relevant territorial unit as defined in Article 45 applies.
Article 47
For the purpose
of identifying the applicable law under Chapter III, in relation to a State
which has two or more systems of law or sets of rules of law applicable to
different categories of persons in respect of matters covered by this
Convention, the following rules apply -
a) if there are rules in force in such a State identifying which
among such laws applies, that law applies;
b) in the absence of such rules,
the law of the system or the set of rules of law with which the adult has the
closest connection applies.
Article 48
In relations
between the Contracting States this Convention replaces the Convention concernant l'interdiction et les
mesures de protection analogues, signed at The Hague 17 July 1905.
Article 49
(1) The
Convention does not affect any other international instrument to which
Contracting States are Parties and which contains provisions on matters
governed by this Convention, unless a contrary declaration is made by the
States Parties to such instrument.
(2) This Convention does not affect the possibility for one or more
Contracting States to conclude agreements which contain, in respect of adults
habitually resident in any of the States Parties to such agreements, provisions
on matters governed by this Convention.
(3) Agreements to be concluded by one or more Contracting States on
matters within the scope of this Convention do not affect, in the relationship
of such States with other Contracting States, the application of the provisions
of this Convention.
(4) The preceding paragraphs also apply to uniform laws based on special
ties of a regional or other nature between the States concerned.
Article 50
(1) The
Convention shall apply to measures only if they are taken in a State after the
Convention has entered into force for that State.
(2) The Convention shall apply to the recognition and enforcement of
measures taken after its entry into force as between the State where the
measures have been taken and the requested State.
(3) The Convention shall apply from the time of its entry into force in a
Contracting State to powers of representation previously granted under
conditions corresponding to those set out in Article 15.
Article 51
(1) Any
communication sent to the Central Authority or to another authority of a
Contracting State shall be in the original language, and shall be accompanied
by a translation into the official language or one of the official languages of
the other State or, where that is not feasible, a translation into French or
English.
(2) However, a Contracting State may, by making a reservation in
accordance with Article 56, object to the use of either French or English, but
not both.
Article 52
The Secretary
General of the Hague Conference on Private International Law shall at regular
intervals convoke a Special Commission in order to review the practical
operation of the Convention.
chapter vii -
final clauses
Article 53
(1) The
Convention shall be open for signature by the States which were Members of the
Hague Conference on Private International Law on 2 October 1999.
(2) It shall be ratified, accepted or approved and the instruments of
ratification, acceptance or approval shall be deposited with the Ministry of
Foreign Affairs of the Kingdom of the Netherlands, depositary of the
Convention.
Article 54
(1) Any
other State may accede to the Convention after it has entered into force in
accordance with Article 57, paragraph 1.
(2) The instrument of accession shall be deposited with the depositary.
(3) Such accession shall have effect only as regards the relations
between the acceding State and those Contracting States which have not raised
an objection to its accession in the six months after the receipt of the
notification referred to in sub-paragraph b) of
Article 59. Such an objection may also be raised by States at the time
when they ratify, accept or approve the Convention after an accession. Any such
objection shall be notified to the depositary.
Article 55
(1) If a
State has two or more territorial units in which different systems of law are
applicable in relation to matters dealt with in this Convention, it may at the
time of signature, ratification, acceptance, approval or accession declare that
the Convention shall extend to all its territorial units or only to one or more
of them and may modify this declaration by submitting another declaration at
any time.
(2) Any such declaration shall be notified to the depositary and shall
state expressly the territorial units to which the Convention applies.
(3) If a State makes no declaration under this Article, the Convention is
to extend to all territorial units of that State.
Article 56
(1) Any
State may, not later than the time of ratification, acceptance, approval or
accession, or at the time of making a declaration in terms of Article 55,
make the reservation provided for in Article 51, paragraph 2. No
other reservation shall be permitted.
(2) Any State may at any time withdraw the reservation it has made. The
withdrawal shall be notified to the depositary.
(3) The reservation shall cease to have effect on the first day of the
third calendar month after the notification referred to in the preceding
paragraph.
Article 57
(1) The
Convention shall enter into force on the first day of the month following the
expiration of three months after the deposit of the third instrument of
ratification, acceptance or approval referred to in Article 53.
(2) Thereafter the Convention shall enter into force -
a) for each State ratifying, accepting or
approving it subsequently, on the first day of the month following the
expiration of three months after the deposit of its instrument of ratification,
acceptance, approval or accession;
b) for each State acceding, on the
first day of the month following the expiration of three months after the
expiration of the period of six months provided in Article 54,
paragraph 3;
c) for a territorial unit to which
the Convention has been extended in conformity with Article 55, on the
first day of the month following the expiration of three months after the
notification referred to in that Article.
Article 58
(1) A
State Party to the Convention may denounce it by a notification in writing
addressed to the depositary. The denunciation may be limited to certain
territorial units to which the Convention applies.
(2) The denunciation takes effect on the first day of the month following
the expiration of twelve months after the notification is received by the
depositary. Where a longer period for the denunciation to take effect is
specified in the notification, the denunciation takes effect upon the
expiration of such longer period.
Article 59
The depositary
shall notify the States Members of the Hague Conference on Private
International Law and the States which have acceded in accordance with
Article 54 of the following -
a) the signatures, ratifications, acceptances and approvals
referred to in Article 53;
b) the accessions and objections
raised to accessions referred to in Article 54;
c) the date on which the
Convention enters into force in accordance with Article 57;
d) the declarations referred to in
Article 32, paragraph 2, and Article 55;
e) the agreements referred to in
Article 37;
f) the reservation referred
to in Article 51, paragraph 2, and the withdrawal referred to in
Article 56, paragraph 2;
g) the denunciations referred to
in Article 58.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at The
Hague, on the 13th day of January, 2000, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Kingdom of the Netherlands, and of
which a certified copy shall be sent, through diplomatic channels, to each of
the States Members of the Hague Conference on Private International Law.
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