TRS.20.011 – Towards a new balance in empowerment and protection of the elderly: A legal empirical perspective

Route: Towards resilient societies

Cluster question: 039 How can the law and other forms of regulation provide sufficient legal certainty while also responding to present-day opportunities and challenges in society?

This proposal aims to fundamentally reshape the system of legal measures of adult protection in the
Netherlands. In our rapidly aging society people live longer and often face deterioration of mental abilities later in life. Accommodation of their needs and interests becomes an urgent challenge of increasing resilience
of our society. The existing Dutch system is not up to this task as it is still based on the obsolete paradigm of protection by reducing legal capacity of elderly persons and appointing a legal guardian. This system conflicts
with international human rights particularly, the UN Convention on the Rights of Persons with Disabilities. It also no longer satisfies the demands of the present-day elderly, who want more empowerment to manage
their own life and affairs as long as possible. In order to avoid the application of statutory measures affecting their legal capacity, elderly massively chooses for a living will – a new voluntary instrument, not affecting legal capacity. This instrument is not regulated by law and provides no sufficient safeguards from abuse by the legal representative. Moreover, the current system has recently failed the stress-test of the COVID19-uitbrake. Thus, a fundamental change is imperative. This project will generate new knowledge and combine the existing
knowledge & experience of professionals involved in the consortium. The acquired knowledge will be used for
creating a modern, empowerment-based system of statutory and voluntary measures for legal protection of the elderly that will comply with human rights; building upon the best practices of other countries; evidence-based; empirically-tested; stress-resistant & broadly accepted by professionals and elderly. The research findings will be piloted and ex-ante tested in a unique research lab and result in legislative proposals; practical guidelines & mentality change by professionals and elderly. An interdisciplinary mixed-method design will entail combination of legal-dogmatic, comparative and empirical research.

Keywords

ADULT GUARDIANSHIP, ELDERLY PROTECTION, law

Other organisations

Bestuur en Organisatie, Departement Rechtsgeleerdheid, Economie, Faculteit Recht, Faculteit Rechtsgeleerdheid, Molengraaff Instituut voor Privaatrecht, Nederlands Studiecentrum Criminaliteit en Rechtshandhaving, Privaatrecht en Notarieel Recht, Rijksuniversiteit Groningen (RUG), Utrecht University (UU), Vrije Universiteit Amsterdam (VU), VU Medisch Centrum Amsterdam (VUMC)

Submitter

Organisation Vrije Universiteit Amsterdam Faculteit der Rechtsgeleerdheid (VU)
Name Prof.dr.mr. M.V. (Masha) Antokolskaia
E-mail M.V.Antokolskaia@vu.nl
Website https://research.vu.nl/en/persons/mv-antokolskaia