A changing paradigm of protection of vulnerable adults and its implications for the Netherlands

Abstract

With the phrase ‘protection of adults’, the Convention on the International Protection of Adults refers in article 1(1) to ‘adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests’. The perception of how the interests of these vulnerable adults should be protected has changed over time. There has been a shift in the protection paradigm, from paternalism and a substitute decision-making approach to autonomy and a supportive decision-making human rights-based approach. In the framework of this shift, in addition to traditional adult guardianship measures, new instruments have been developed allowing adults to play a greater role in the protection of their (future) interests. This has also been the case in the Netherlands, where adults in the course of the last decade have acquired the possibility to make a so-called living will, internationally better known as a continuing, enduring or lasting power of attorney. The aim of this article is to discuss this instrument, in comparison with the traditional adult guardianship measures currently in force in the Netherlands, from the perspective of the new protection paradigm based on a human rights approach. To this end, in the following paragraph, we will try to delineate the historical context of the new protection paradigm and the human rights approach. Then in paragraph 3, we will focus on the influence of article 12 of the Convention on the Rights of Persons with Disabilities (UNCRPD) and the controversy around its implications for the protection paradigm. In paragraph 4, we will provide an outline of the attempt to go beyond this controversy – the so-called alternate framework developed by Martin et al. In paragraph 5 we will elaborate on what kind of measures could meet the requirements of article 12 of the UNCRPD and what kind of safeguards should be incorporated therein. In paragraph 6, we will deal with the question whether the traditional adult guardianship measures in the Netherlands, based on substitute decision-making schemes, are compliant with the new protection paradigm. In paragraph 7, we will discuss the potential of the living will as an instrument of supportive decision-making. The conclusion will comprise some final remarks and suggestions for the future.