In 2014, much changed in the Netherlands in the area of legislation and supervision regarding guardianship. With the inception of the law on conservatorship, guardianship and mentorship (cbm), the profession has been broadened and further developed and supervision has been organised in a different way. Professor by special appointment Kees Blankman outlines the history, changes in regulations and the application of guardianship in this contribution from BPBI.
History and the impact of human rights
Up till 1982, the only protective measure the Dutch judge could impose was conservatorship. This measure originates from Roman law and was largely concerned with the protection of the financial interests of the potential heirs. For centuries, conservatorship has retained the character of an all or nothing measure that was primarily intended to safeguard property (family) interests. Social developments and the internationalisation of human rights after World War II have led to the introduction of other protective measures and alternative legal arrangements.
The measure of guardianship was regulated by law on 1 September 1982 and mentorship followed on 1 January 1995. An important reason for the introduction of these measures was the preliminary recommendations for a bill (Heuff and Van Zeben, 1974) that primarily concerned the income and wealth problems of the elderly. A researcher from the Scientific Research and Documentation Center, part of the Ministry of Justice and Security, (EM Naborn, Protection Government, a comparison with the guardianship, 1998 p. 4) concluded: ‘Conservatorship primarily takes place within the family and concerns young, mentally incompetent persons. Guardianship is applied to older persons who are losing their independence and move into a care home. They sell their house and need someone to help them manage their money.’
The initial theory of mentorship dates from 1939 and can be found in the book Krankzinnigenrecht, by A. Querido. To protect minors, we had a measure called denying custody. Later, in 1922, a less drastic measure was introduced, the supervision order. Querido argued for a similar kind of supervision for the mentally ill. From time to time, ideas such as mentoring popped up in legal publications and in the 1970s the proposals of the National Disability Care Agency resulted in a draft law on mentoring. Thus, guardianship has primarily arisen from elderly care whereas mentoring has its roots in the care for the mentally handicapped.
Guardianship and mentoring are less invasive than conservatorship because they do not render the client completely incapacitated. Under mentoring, the client is not authorized to make care decisions on his own, under guardianship, clients are no longer allowed to make financial decisions about their money and assets. The removal of the right to make one’s own decisions (making someone legally incapacitated or unauthorized) may constitute a violation of the provisions of art. 8 ECHR protecting the right to private and family life (see e.g. A.N. t. Lithuania, ECHR 31 May 2016, no. 17280/08).
In the Netherlands, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) came into force on 31 August 1954 and the ECHR (European Court of Human Rights), based in Strasbourg, was appointed to judge possible violations of treaty provisions. This human right, which is included in art. 8, was initially not associated with protection measures for adults. It has gradually become clearer and has also been indicated by the European Court that the introduction of a guardianship or other protection measures may be contrary to art. 8 ECHR. In Ivinoviç t. Croatia (18 September 2014, 13006/13) paragraph 44, the Court of Appeal stated: ‘… deprivation, even partial, of legal capacity should be a measure of last resort, applied only where the national authorities, after carrying out a careful consideration of possible alternatives, have concluded that no other, less restrictive, measure would serve the purpose or where other, less restrictive measures, have been unsuccessfully attempted.’
Under the current legal understanding of guardianship, this means that the measure must be regarded as a ‘last resort’ and may only be imposed if other less drastic alternatives prove to be unsuccessful. When examining a request for the institution of a guardianship, the district judge is not legally obliged to examine whether a less radical alternative would also be possible, but he ought to do this on the basis of the general principle of subsidiarity. In the case of a conservatorship, this obligation does exist. Art. 1: 378 paragraph 1 of the Dutch Civil Code states that the court cannot order a conservatorship if the interests to be protected can be sufficiently represented with a more suitable and less far-reaching provision. In case of a guardianship, the petitioner will, most often, have examined whether a power of attorney or debt assistance on a voluntary basis may suffice and if he didn’t do so, the judge will check this in court, although this is not a mandatory and essential part of the (preliminary) procedure.
Changes in the regulation and application of the guardianship
Since the introduction of guardianship in the 1980s, the legislation itself and certainly the application of the measure has changed in many ways. The most important changes concern the ground(s) for imposing the measure, the circle of applicants, the introduction of quality standards for the guardians and the remuneration of the guardians. The duties of the legal guardian and the legal position of the client have not changed significantly.
An important change in the laws around guardianship concerns the introduction in 2014 of a second indication for the imposition of a guardianship, namely ‘squandering behaviour or having problematic debts’. In the Recommendations for Multiannual Government on www.rechtspraak.nl (p. 5) a problematic debt situation is described as ‘a situation in which it can reasonably be foreseen that the person concerned will not be able to continue paying his debts, or has stopped paying’. This extension of the legal basis of the imposition of guardianship, which was part of the Cbm Amendment Act, has also changed the nature of the measure. Until then, a guardianship could be imposed over one or more assets of an adult who, due to his mental or physical condition, was not (fully) able to manage his assets. Guardianship was firstly considered suitable for people with little or no mental or physical problems, but from 2014 onwards, it was not only possible to impose a regular guardianship, but also a debt guardianship. The total annual growth of guardianships seems to be declining somewhat and the increase since 2014 is largely attributable to debt guardianships. When a debt guardianship is imposed, there may also be other grounds for guardianship, but the debt problem prevails. By no means are all guardianships ‘pure’ debt guardianships.
Originally, conservatorship and the other two protective measures were family affairs. The applicant was a family member and the judge appointed a family member as legal guardian, mentor or conservator. The circle of applicants has been expanded with the Cbm Amendment Act, which largely came into force on 1 January 2014. A request for guardianship may be submitted by: the person concerned, his or her partner, close relatives and some other (legal) persons. However, since 2014, the care institution where the individual concerned is cared for or who offers him guidance, is also allowed to do so. This is a valuable addition from the point of view of early detection, although there is some criticism. Read more about this on p. 19 and 20 of the final report of the evaluation study of the Cbm Amendment Act carried out by Bureau Bartels. Critical debt counsellors doubt whether care institutions have sufficient knowledge to be able to assess whether a debt guardianship is necessary.
Amendments to the legal regulations on conservatorship, guardianship and mentorship are more uniformly regulated by the Cbm Amendment Act. That applies not only to the circle of applicants, but also to the rules governing the appointment of representatives. The law requires the court to take into account two preferences. Firstly, the judge must in principle appoint the person who is nominated by the individual concerned. Secondly, the judge is bound to ascertain whether there is a suitable candidate within the family. Certain people cannot be appointed. Minors and persons who themselves are under conservatorship, guardianship or mentorship cannot be appointed. Individuals and legal persons who cannot properly protect their own financial interests, as demonstrated by the fact that they have gone bankrupt or fall under the Wsnp (Natural Persons Debt Restructuring Act), are also excluded. The Wsnp is part of the Bankruptcy Act, in force since 1 December 1998, and offers the possibility of a debt-free future after a period of (normally) three years. The Wsnp also involves a guardianship and a legal guardian, but both serve the interests of creditors. For this reason, the Wsnp legal guardian cannot be appointed to a debt guardianship. Also excluded from appointment is the care provider directly involved with the individual and anyone who is closely related to the care institution where the individual concerned resides or who assists him. The Netherlands Institute for Human Rights draws attention to the undesirable situation in which non-nominable persons may carry out guardianship duties anyway (https://mensenrechten.nl/nl/publicatie/38718).
The percentage of appointed guardians who are family members compared to professional legal guardians is unknown. The Council for the Judiciary does not record this information. Increasingly, more professional legal guardians are being appointed. Two important differences between these types of legal guardians are the difference in remuneration (family members receive little more than half the remuneration that professional legal guardians are allowed to claim) and the fact that family legal guardians do not need to meet quality standards. Of equal importance is the fact that family legal guardians may have their own personal interests and can be often too involved. They may, in some cases, lack the knowledge of relevant allowances and regulations.
National Quality Agency
On 1 April 2014, the Decree on Quality Requirements Cbm was introduced with specific standards for representatives of three or more clients. An audit is carried out annually by the National Quality Agency (LKB). These requirements do not apply to family legal guardians. The standards have been drawn up in consultation with professionals in the field, including the BPBI, and concern the training and further instruction of the legal guardian, the interaction with the individual concerned, aspects of the business organization such as the separation of functions, business operations and the existence of a complaints procedure and liability insurance. The emphasis is on formal qualifications and so there is little actual observation of the day to day actions of the guardian. Audits by the LKB did lead to a ‘clean-up’ in the field of legal guardians. The LKB is not regulated by law and it is not possible to object to or appeal the decisions of the LKB. This is mentioned in the evaluation study conducted by Bureau Bartels and during the stakeholder meetings on this subject with professionals in the field. Minister of Legal Protection Dekker observed that the lack of the possibility for appeal requires further investigation (Letter to the Lower House of 4 July, No. 2639796, p. 9).
On 1 January 2015, a binding remuneration system, the Remuneration Scheme Cbm, was put into effect. In general, this arrangement of a flat rate payment appears to be satisfactory, although recently there have been rumours that due to the increase in the complexity of cases and the desirability of promoting self-reliance, the current allowed remuneration would be insufficient.
There are various trade associations for legal guardians in the Netherlands, of which BPBI is the largest and the oldest. Since its creation in 2003, it has been committed to the quality of the work of legal guardians. As of 2019, mentors and conservators may also join. Members of the association commit themselves to the regulation of the standards of the association and are audited annually. This audit is an additional test that is carried out by the LKB.
BPBI is committed to strengthening the professional position of legal guardians through collective advocacy. To this end, BPBI is in constant communication with ministries, municipalities, LKB, VNG, tax authorities, UWV, CJIB, universities and colleges, the Council for the Judiciary and other trade associations.
An example of this communication is the ‘Samen Verder’ program, launched in 2015, which aimed to strengthen the cooperation between the judiciary, municipalities and administrators. From this project emerged the ‘Samen Verder’ model, which is still in place four years later and is widely used in establishing partnerships between the aforementioned parties.
Working from the client perspective of its members, BPBI increasingly focuses on the social role of legal representatives. The association does this in conjunction with partners within the social domain. For example, BPBI is a partner in the Broad Debt Approach Partnership (initiated by the Ministry of Social Affairs and Employment) and is involved in other partnerships and projects, such as the Alliance Child Poverty, MKB-RAAK and the Alliance Safe Financial Aging. In cooperation with the NVVK and VNG, BPBI contributes to the development of a national basic standard with regard to debt assistance services.
1 Protection regime at LVB: form financial security to financiel self-reliance?. Hogeschool van Amsterdam
Authors: Specially appointed Professor mr. dr. Kees Blankman and editorial staff: Simche Heringa and Brenda de Jong
Kees Blankman is affiliated with VU Amsterdam’s legal faculty. He conducts research into, and is actively involved in counselling in the area of the support, protection and representation of incapacitated people. He obtained his PhD in the subject of guardianship and customized protection. From an international human rights framework, especially the UN Convention on the Rights of Persons with Disabilities (CRPD), he seeks to balance the autonomy of, with the protection for, people who are not entirely able to properly represent their own interests. Blankman is a deputy judge in the Gelderland district court in Zutphen on BOPZ cases and has been a long-time member of the cbm expert group.