The 4th World Congress on Adult Guardianship was held at the end of September in Erkner, Germany. Two of your editors attended: one, Alex, as participant, and one, Adrian, as speaker. The congress was attended by many professional guardians from around the world (most, very crudely, discharging functions akin to those of deputies under the MCA 2005), academics, lawyers and judges. The single biggest national contingent – understandably – came from Germany, but delegates attended from every inhabited continent. In both  plenary  sessions and parallel workshops, a multitude of issues were addressed – a flavour being found from the abstracts and working papers to be found on the Congress website here.

From Alex’s perspective perhaps the most fruitful debates  arose in consequence of  the search    to explain across and between jurisdictions the principles underlying the relevant national legislation (and its operation in practice). In this regard, Adrian set the ball rolling in expert  fashion with a wide-ranging and very well- received comparative review of international protection of adults, which is available here (together with a continuation piece from a subsequent session on decision makers within formal support mechanisms). Both of these will be reworked and revisited in due course for publication.

A particular theme – at least from Alex’s perspective – was the extent to which current regimes comply with the CRPD; a theme given particular emphasis given the presence of and contributions from Professor Theresia Degener, Vice-Chairperson of the Committee on the Rights of Persons and Disabilities, and also the discussions throughout of the implications of the very recent German Constitutional Court decision in 1 BvL 8/15 relating to forced medical  treatment (a detailed article on this will be contained in the next Newsletter). The  discussions around this theme at the conference felt, in many ways, much like a continuation of the intensive discussions which went into the EAP 3 Jurisdiction report relating to compatibility of (in)capacity legislation in the UK with the CRPD, and – like those discussions - revealed new areas for investigation and work as much as they did give answers and solutions.

The Congress had a very important practical outcome in the shape of the adoption of the revised Yokohama Declaration, setting out principles for the development of regimes for the legal support and protection of adults. The process of revision had begun in advance of the Congress, coordinated by the International Guardianship Network and the organisers  of  the

Congress, with a working group chaired by Prof  Dr Volker Lipp and Prof Dr Dagmar Brosey, of which both Adrian Ward and former Senior Judge of the Court of Protection Denzil Lush were members.    Further   input   was provided  by members of the International Advisory Board.  The outcome of this process was a Declaration (which, importantly, contains within it a recommendation that it is kept under review) which both stylistically and substantively rather different to the original declaration.

How far the CRPD has already produced movement towards systems which are centred around the adult in question since the original Declaration was adopted in 2010 can be seen not just in the removal of the term “guardianship” from all substantive parts of the declaration, but also in comparing the first key declarations from the two documents. In the original declaration, the first declaration read:

WE DECLARE that in the context of adult guardianship:

 WE DECLARE that in the context of the legal support and protection of adults:

  1. all adults must be assumed to have the capability to exercise their legal capacity without support unless it is established that they require support or need protection in relation to a particular act or decision;
  2. support and protection includes taking all practicable steps to enable the adult to exercise his or her legal capacity.
  3. law and practice should recognize that requirements for support and protection are both “issue specific” and  “time specific”, that they can vary in  intensity and can vary  according  to  the  nature and effect of the particular act or the decision to be made, and that they can fluctuate in an individual from time to  time.
  4. measures  established  autonomously   by an adult should have precedence over  other measures relating to the exercise of legal capacity.
  5. the imposition in any individual case  of  any  measure  of  support  and   protection should be limited to the minimum necessary intervention to achieve the purpose  of that measure.
  6. measures of support  and  protection  should  be  subject   to   periodic   and regular review by an  independent authority. The adult should have an effective right to institute such a review irrespective of his/her legal capacity.
  7. measures in relation to the exercise of  legal capacity should only be imposed where it is established that they are necessary and in accordance with international human rights law. They should  not  be  applied  in  order   to protect  third parties.
  8. all forms of incapacitation which restrict legal capacity irrespective of the existing capabilities of the adult should be abolished.

 These revised principles certainly do not represent an end-point in our journey towards regimes that properly comply with the CRPD. However, it is suggested that they represent a model of best (current) practice that should serve both as a yardstick to test current national legislation against and as a goad to further action. For bringing about the adoption of the revised Declaration alone – but indeed for very much more – the organisers of the Congress are very much to be congratulated.