Adult Guardianship in Europe: A Human Rights and Comparative Perspective: Between Rights and Realities

Abstract

Some adults need support to make legal decisions because of conditions such as dementia or intellectual disabilities. Courts or authorities can appoint a guardian to make decisions with them or on their behalf. These measures, known as adult guardianship, can have far-reaching consequences. They can limit a person's ability to manage finances, consent to medical treatment, or choose where to live. When should courts and authorities step in to protect individuals, and when should they step back to respect their choices? Because of population ageing, this question is becoming increasingly urgent. More than nine million people currently live with dementia in Europe, a number expected to double by 2050. International human rights law has challenged traditional approaches to adult guardianship. The UN Convention on the Rights of Persons with Disabilities (CRPD) requires states to recognise the legal capacity of persons with disabilities on an equal basis with others and to support them in exercising that capacity in line with their will and preferences. The European Court of Human Rights (ECtHR) has reinforced this shift. It holds that limitations on legal capacity should only be applied as a last resort and must be accompanied by procedural safeguards. This dissertation provides the most comprehensive comparative study to date of adult guardianship systems across 28 European jurisdictions. It focuses on three human rights standards - legal capacity, will and preferences, and procedural safeguards - with particular attention to persons with dementia. Drawing on comparative legal analysis and interviews with judges, guardians, lawyers, and policy advisors in Germany and Ireland, it documents gaps between law and practice. Professionals may communicate primarily with guardians rather than with the persons concerned, and judges may impose broader limitations than necessary. The research shows that the complete elimination of legal capacity limitations is rarely implemented across Europe. The persistence of legal capacity limitations, even in jurisdictions that have formally prohibited them, suggests that they sometimes serve functions that cannot easily be replaced. In reality, guardians and other decision-making supporters must balance respect for individuals’ autonomy with concerns about their well-being and the rights of others. The challenge is to ensure that any limits are used only as a last resort and are properly safeguarded. The dissertation identifies concrete examples from European jurisdictions that legislators can build on, as well as areas where further guidance is needed.