The increase in life expectancy and the increasing mobility of people within the European Union are increasingly leading to situations in which a vulnerable person has connections in several countries. Between France and Spain, these situations raise particularly sensitive legal issues, particularly when it becomes necessary to organize a protection measure.
The protection of adults is not limited to an administrative question. It concerns both the management of the personal interests of the protected person, such as their living conditions or their medical choices, and the management of their assets. When a foreign element intervenes, this protection must be considered within an international framework, involving the coordination of several legal systems.
Distinct but comparable protection devices.
France and Spain both have mechanisms designed to protect adults whose faculties are impaired. In French law, several regimes exist, notably safeguarding of justice, curatorship and guardianship, to which is added family authorization.
These devices make it possible to adapt the level of protection to the person’s situation, depending on their degree of autonomy. They organize the appointment of a representative responsible for assisting or representing the person in everyday activities.
In Spain, the system has been profoundly reformed in order to strengthen the autonomy of vulnerable people. Support mechanisms now favor support rather than substitution, promoting respect for the will of the protected person.
Despite these differences in approach, the two systems pursue a common objective: to protect the person while respecting their rights and dignity as much as possible.
Determination of applicable law and competent jurisdiction.
When a situation has an international character, it is necessary to determine which state is competent to put in place a protective measure and which law should apply.
As a general rule, jurisdiction lies with the authorities of the country in which the vulnerable person has their habitual residence. This criterion ensures proximity to the person’s concrete situation and facilitates the implementation of the measure.
However, difficulties may arise when the person owns property in another country or when their family is spread across several states. In these cases, coordination between authorities may be necessary.
Recognition of protection measures between France and Spain.
A protective measure taken in one country is not always automatically recognized in another. Recognition depends on several criteria, in particular respect for the fundamental rights of the protected person and the competence of the authority having taken the decision.
In a Franco-Spanish context, recognition is generally facilitated, in particular thanks to the principles of cooperation between member states of the European Union. However, formalities may be necessary to enable the effective exercise of the representative’s powers in the other country.
For example, a guardian appointed in France may encounter difficulties managing property located in Spain if the measure is not recognized locally. A specific approach may then be required to make the decision fully effective.
Heritage issues in an international context.
The protection of adults often involves the management of assets. When this heritage is distributed between several countries, the situation becomes more complex.
Each state maintains its own rules regarding ownership, property management and taxation. The representative of the protected person must therefore comply with these rules to carry out the necessary acts.
This may concern the management of real estate, the completion of a sale or the management of bank accounts. Poor coordination can lead to blockages or delays in asset management.
Anticipation thanks to adapted legal tools.
Faced with these difficulties, anticipation is an essential element. It is possible to organize in advance the protection of a person in the event of loss of autonomy.
In French law, the future protection mandate allows a person to organize the terms of their protection themselves. It can appoint a representative responsible for managing its interests and define the powers which will be entrusted to him.
This type of device is of particular interest in an international context. It makes it possible to plan the management of assets and personal interests taking into account the different countries concerned.
However, its effectiveness abroad will depend on its recognition in the state concerned, which requires adapted drafting.
The role of the lawyer in the management of international situations.
The protection of adults internationally requires coordination between several legal systems. The intervention of a lawyer makes it possible to secure this coordination.
The lawyer analyzes the person’s situation, identifies the applicable rules and supports the implementation of protection measures. It also intervenes to facilitate the recognition of decisions in the different countries concerned.
In a Franco-Spanish context, this expertise is essential to avoid blockages and guarantee effective management of the situation.
A person-centered approach.
Beyond the legal aspects, the protection of adults must remain focused on the person. The systems put in place must respect their wishes, preserve their dignity and promote their autonomy as much as possible.
In an international context, this objective must be reconciled with the need to respect the rules applicable in each country.
Conclusion:
The protection of adults between France and Spain constitutes a major legal issue in a context of increasing mobility. It involves the coordination of several legal systems and the taking into account of often complex situations.
An anticipated and structured approach makes it possible to secure the management of the personal and property interests of the vulnerable person. It also guarantees better effectiveness of protection measures internationally.
In this context, legal support appears to be an essential element to ensure appropriate protection, respectful of human rights and effective in its implementation.
Miguel Morillon. Lawyer at the Madrid Bar.Â
