The legal challenges of cross-border incapacity
Published on April 21, 2022 by Selwyn Black
What happens if an Australian relocates overseas for work, extended holiday or retirement leaving property in Australia, and they then suffer from dementia? What if their property is being diverted and they have no legal capacity to protect their interests?
What about the reverse where a migrant living in a nursing home in Australia suffers dementia and regresses to their native language, so that they can only meaningfully converse with carers and be close to their family by moving back to their original homeland, in say the Italian part of Switzerland, where there are nursing homes with people who speak their dialect?
Many countries including Australia have individual and distinctive systems to protect adults who cannot adequately protect their own interests. However, what happens when the problem emerges across borders?
Whilst Australian states and territories will generally have arrangements to recognise guardianship and property management orders made in other Australian states and territories, the situation is far more complex across international borders. Australia is not currently a signatory to the 2000 Hague Convention on the International Protection of Adults. The aim of the Convention is to consolidate international enforcement of measures to protect adults who “by reason of an impairment or insufficiency of their personal faculties” cannot adequately protect their own interests.
The Convention is potentially important where a person with a disability needs to relocate to, or has property, outside where they are domiciled. With the increased global movement of people, and increased rates of dementia and other causes of intellectual incapacity, this is a growing need.
In some cases, this gap might be filled by laws such as the Foreign Judgments Act 1991 (Commonwealth of Australia) which recognises judgments in some countries – but that only covers a narrow range of countries and is not well tailored to guardianship and property management orders.
There is the potential for a person who has obtained an order in a court outside Australia to seek supportive court orders in Australia at common law or in equity, subject to some exceptions. However, these cases involve very significant expense and some uncertainty, and this approach could hardly be described as fit for the purpose. These issues don’t only apply in the case of migration, as someone could suffer an intellectual disability and restrictions on return while travelling or on business. Also, it is not unusual now for citizens to have property in another country.
There is a public interest in ensuring that the rights of persons lacking full capacity are protected, including across borders. It is a human right, to be protected from exploitation or the consequences of being unable to deal with one’s affairs
The Convention on the Rights of Persons with Disabilities (to which Australia is a signatory) speaks of equality of opportunity and participation and inclusion in society. However, that requires both protections, and practical ways of dealing with guardianship and property management issues for incapacitated persons, across borders.
I would welcome contact by others who are interested in lobbying for change in this area.
Selwyn Black Partner
Carroll & O’Dea Lawyers
Tel: (02) 8226 7359