Central Authority - International Protection of Adults

The Convention on the International Protection of Adults was adopted in Hague on 13.01.2000 and approved, in Portugal, by Resolution of the Assembly of the Republic n.º 52/2014, in 19th June, and has entered into force in the Portuguese legal order on 01.07.2018.

The Convention appears in a context of cultural, demographic and scientific evolution, where the aging of the world population and transnational mobility, together with the (growing) recognition and effective protection of the rights of (adult) persons with disabilities or reduced capacity, determine the need to ensure, in international situations, the protection of adults considered most vulnerable, through legal regulation and cooperation at international level.

It provides an answer to questions of private international law, through the provision of rules regarding jurisdiction, applicable law and the international recognition and enforcement of protection measures, as well as the international validity of measures in advance of care and/or representation in case of disability.

The Convention establishes a mechanism for cooperation between the authorities of the Contracting States, as a rule, through their respective Central Authorities.

The Portuguese State designated the Prosecutor General's Office as the Central Authority, formally installed through Directive 2/2019, of the Prosecutor General's Office.

Among other activities carried out by the Central Authority, within the scope of the protection of adults, the Central Authority is essentially responsible for:

1. Cooperate with other national authorities and promote cooperation between the competent authorities of the respective States in order to achieve the objectives of the Convention;

2. Take appropriate measures to provide information on existing laws and services available on the protection of adults;

3. Take all appropriate measures to:

i. Facilitate communication, by all means, between competent authorities in situations to which the Convention applies – including, with a view to enforcing an adult protection decision;

ii. At the request of a competent authority of another Contracting State, assist in tracing the location of an adult whenever it appears that the adult may be in the territory of the requested State and in need of protection.

Analyse and follow up on the request of a competent authority to place an adult in an establishment or other place where protection can be ensured, as well as to apply accompanying measures that prove necessary.

The 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" (Article 1(1)) and has as its object to ensure the recognition and enforcement of protection measures in all Contracting States.

Among the measures of protection are the designation and determination of the functions of any person or body responsible for the person or property of the adult, as well as their representation or assistance and the administration, conservation or disposal of the property of the adult.

As for the temporal scope, the Convention applies only to measures that have been adopted in a State after the entry into force of the Convention for that State (Article 50(1)).

The Convention also makes the applicability of the rules on the recognition of measures (chapter IV - articles 22 and following) dependent on the validity in both States (of origin and requested) on the date of adoption/enactment of the measures (article 50 .º, no. 2). This does not prevent the recognition of measures and/or decisions that have decreed them in accordance with the internal rules of each State.

The Convention applies to powers of representation conferred by the adult (eg. mandate for future accompanying – “mandado com vista a acompanhamento” [article 156 of the Portuguese Civil Code] ) granted under conditions corresponding to those provided for in Article 15 (Article 50(3)). In this regard, according to the explanatory report by Paul Lagarde, the Convention requires recognition, in the future, of the existence of powers conferred before the entry into force of the Convention, but does not require the recognition of acts that have been carried out in application of these powers before the Convention enters into force in that State.

As a rule, the judicial or administrative authorities of the Contracting State in which the adult has his habitual residence are competent.

The following situations are exceptions to this rule:

- refugee adults;

- undetermined residence;

- State of nationality best positioned for protection;

- cases of urgency or need for provisional measures;

- Authorities of the competent State request the adoption of measures to protect the person or property of the adult from the State:

a) that the adult is a national;

b) where previously the adult habitually resided;

c) where the adult's assets are located;

d) that the adult has chosen, in writing, to adopt protective measures aimed at their protection;

e) where a person close to the adult who can assume their protection usually resides; or

f) where the adult is, when their protection is at stake.

As a rule, the authorities of the Contracting States competent to determine the protection measures apply their own law, although they may apply the law of another State with which the situation has a relevant connection (Article 13).

When measures are applied in another State, the conditions of application and enforcement are governed by the law of that other State (Article 14).

The powers of representation conferred by the adult, by unilateral act or by agreement, are governed, as to their existence, extent, modification and extinction, by the law of the State where the adult has his habitual residence, unless the adult expressly designates, in writing, the law of the State of which he is a national; the law of the State of a former habitual residence of the adult; or the law of a State in which property of the adult is located, with respect to that property (cfr. article 15, paragraphs 1 and 2).

The manner in which these powers of representation conferred by the adult are exercised is governed by the law of the State where they are exercised (Article 15(3)).

“Measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States” (Article 22(1)). This rule establishes the principle of automatic recognition of protection measures applied by a decision subsequent to the entry into force of the Convention in Portugal. That is, as a rule, measures adopted in one Contracting State shall be recognized by mere legal effect in the others and applied in another Contracting State as if they had been taken by them.

However, the Convention does not rule out the possibility of preventive recognition, as provided for in article 23, which must take place on request.

In cases where the protection measure needs to be enforced, the exequatur procedure provided for in article 25 of the Convention will take place.

In Portuguese law, the judicial procedure for the recognition of decisions handed down by other States is the special action of review and confirmation of a foreign judgment (articles 978 and following of the Civil Procedure Code). Regarding the requirements for confirmation of the foreign judgment, listed in article 980 of the Code of Civil Procedure, and the grounds for non-recognition of measures, provided for in paragraph 2 of article 22 of the Convention, the central authority has understood that , taking into account the fact that the Convention is based on principles of cooperation and mutual trust, there is no need for a special document, formalized or legalized, even for the purposes of recognition – in our case, of review and confirmation. Article 41 of the Convention also dispenses with the legalization or other type of formality of documents sent under the Convention – where the decisions that apply protection measures are inserted.

The Public Prosecution Service has the legitimacy to propose the special action of review and confirmation of a foreign sentence, on behalf of the vulnerable adult / accompanied adult.

[1] It does not exempt the consultation of the official source and the verification of the respective maintenance in force.

Information on Contracting States available on the Hague Conference on Private International Law page