Family & Law

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    The Dutch levenstestament allows adults in the Netherlands to make their own provisions for a future period of incapacity. Although this instrument is becoming increasingly popular, the current regulation and application of the levenstestament are not without problems. The levenstestament has been designed and conceptualised by the Dutch notariate within the framework of the existing law. This regulatory framework has not been designed with a setting of future incapacity in mind and compliance with international human rights norms and principles, such as Article 12 UNCRPD, is therefore not sufficiently guaranteed. Moreover, empirical research indicates that the application of the levenstestament, in practice, does not run smoothly in all cases. Across Europe there are countries where the possibility to make instruments, similar to the Dutch levenstestament, has already been in place for quite some time and where such instruments are regulated by law. This article presents the results of a comparative study of the legal regulation and practical application of enduring documents in four European jurisdictions (Belgium, Germany, England and Wales and Switzerland). Recommendation CM/Rec(2009)11 on Principles concerning continuing powers of attorney and advance directives for incapacity has been used as a frame of reference to look at the regulation on the form, content, entry into force, registration and/or certification of each enduring document as well as the appointment and role of attorneys, the preservation of legal capacity, conflicts of interests and supervision. The aim has also been to gain an impression of the law in action. Based on this information best practices have been identified which provide a solution to the problems with the regulation and application of the levenstestament in the Netherlands. The adoption of specific legislation incorporating these best practices in Book 1 of the Dutch Civil Code is recommended.

Rieneke Stelma-Roorda LLM MSc
H.N. Stelma-Roorda LLM MSc is PhD Candidate at Vrije Universiteit Amsterdam.