Time for a Viennese whirl?

In the summer, I flagged up that Austria on 10 July had signed up to the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults, which had then been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland and Switzerland.

Last month, less than three after signing, Austria ratified Convention XXXV. It will not, however, come into force there until 1 February 2014.
http://www.hcch.net/index_en.php?act=events.details&year=2013&varevent=328

In Ireland, the Assisted Decision-Making (Capacity) Bill no 83, which will bring Irish capacity law into the 21st Century is making good progress and is likely to come into force during 2014.
http://www.oireachtas.ie/viewdoc.asp?DocID=24147&&CatID=59

This will enable ratification of Convention XXXV which may come into force in Ireland in 2015. Sch.3 to the 2013 Bill sets out Convention XXXV in a similar manner to Sch.3 of the Adults with Incapacity (Scotland) Act 2000 in Scotland and Sch.3 of the Mental Capacity Act 2005 in South Britain.

Many of us think that it extraordinary that although the 2005 Act has been in force in England & Wales since 2007 and that Convention XXXV has been in force since 1 January 2009, the UK still has not got round to ratifying for England and Wales.

The practical difficulties between Scotland and South Britain, involving capacity issues are growing. The acceptance and enforcement of lasting or continuing powers of attorney either side of the border, cause real problems. The UK Ministry of Justice should be ashamed and embarrassed that the law in England & Wales is still half cooked.

Dublin, Edinburgh and Vienna are definitely ahead of London in this particular bake off.

Richard Frimston TEPChair of STEP EU Committee and Co-Chair of the STEP Public Policy Committee

Cross-border incapacity on a flood tide?

In Shakespeare’s Julius Caesar, Brutus famously tells Cassius:

‘There is a tide in the affairs of men,
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves
Or lose our ventures’.

In the May 2013 issue of the STEP Journal I described some of the background and history of the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults (Convention XXXV), which has now been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland and Switzerland. Cyprus, Greece, Ireland, Italy, Luxembourg, the Netherlands, Poland and the UK (excluding Scotland) have all signed but not yet ratified. On 10 July 2013 Austria also signed.

Many of us think that it is high time that England and Wales ratify Convention XXXV. We find it impossible to explain to clients why it is not fully in force and available to help, in what are usually extremely distressing and stressful circumstances.

The EU is encouraging member states to ratify and more are doing so. Ireland is now following the current and is set to overtake its backward neighbour.  On 15 July 2013, the Assisted Decision-Making (Capacity) Bill (no 83) was published in Dublin, which will bring Irish capacity law into the 21st Century and enable ratification.

If more countries were to ratify Convention XXXV, the position would often be more straightforward. The UK Ministry of Justice should be ashamed and embarrassed that England and Wales has still not yet done so.

Catch the flood tide and avoid being bound in shallows and in miseries.

Richard Frimston TEP, Chair of STEP EU Committee and Co-Chair of the STEP Public Policy Committee