An attorney you trust

By Christian BlockLex KlerenGilles Kayser Switch to German for original article

Designating a trusted person to make decisions for you when you are getting older or sick, if you are no longer able to do so yourself? Luxembourg now wants to introduce what already exists abroad. Why this should be helpful and what a look abroad can teach us.

Marc has reached an age where he can’t do things so easily as he did before. The 60-year-old is still capable of doing what he likes, but he wants to make provisions in case he is no longer able to make independent decisions. He has already discussed this with his younger sister. She would be willing to take on this responsibility, to take care of his banking business, to look after the dog, but also to take his personal requests.

What has been legally possible in many countries for years, has so far been missing in Luxembourg. This is to change in the future. At the beginning of December 2022, the government announced the introduction of a "mandat de protection future" (MPF). The plans for these continuing powers of attorney (CPA) are to be seen in the context of the major reform of the guardianship law, which, however, continues to be a long time coming. (see infobox)

This means that, when the project eventually reaches the end of the process, the Grand Duchy will catch up with its direct neighbours and countries such as the Netherlands, Turkey, Austria, the Czech Republic and the Republic of Moldova. In 2017, 20 member states of the Council of Europe had or were in the process of introducing CPAs ‒ albeit with differences. In 16 countries, the provisions covered both the management of assets and aspects of personal life.

As early as 2009, the Committee of Ministers of the Council of Europe advocated strengthening the self-determination of adults to make their own provisions in the event that their decision-making capacity is impaired ‒ both in financial and personal matters. Such methods should enjoy "priority over other protective measures". In other words, self-provision should be the rule, reactive protection measures by a court the exception.

With this, the Council of Europe had basically only repeated earlier demands. Shortly before the turn of the millennium, the institution had already pleaded for protective measures adapted to the degree of "incapacity" and for precautionary measures to protect the personal and financial interests of an adult person. This shows the extent to which Luxembourg legislation was already outdated at that time. And that a reversal of course is also urgent in view of demographic ageing.

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