2016: Decision making and legal capacity in dementia
Consent to medical treatment
Pursuant to Article 8 § 1 of the Law of 22 August 2002 on Patients’ Rights, consent is required for medical acts that intrude on a person’s physical integrity (Leenen et al., 1993). Such consent can be implied except in the case of major interventions. At the request of the patient and with the agreement of the physician, or alternatively, at the request of the physician and with the agreement of the patient, the consent is recorded in writing and put in the patient’s medical file.
Consent may be given on behalf of a person who is suffering from a mental disorder or who is unable to express his/her will either by a formally designated legal representative or by a family member in his/her role as the patient’s natural protector. Where an order for judicial protection is made pursuant to the new Article 492 of the Belgian Civil Code, the Justice of the Peace must rule expressly on whether or not the protected person has the legal capacity to exercise his/her patients’ rights pursuant to the Law of 22 August 2002, or whether the assistance of or representation by the administrator is required.
The issue of consent is also covered in the Code of Medical Ethics. Article 30 of the Code states that if a patient is incapable of giving his/her consent and it is impossible or inappropriate to obtain the consent of his/her legal representative, the doctor must proceed with treatment as dictated by his/her conscience.
By virtue of Article 13 § 2 of the Law of 22 August 2002 on Patients’ Rights, the patient can continue to exercise his/her rights for as long as he/she is capable of understanding.
Article 14 § 1 of the same law states that a patient can, while still capable of understanding, appoint a “mandatary” to exercise rights under that law on the patient’s behalf in the event of subsequent inability of the patient to exercise such rights. For this purpose, a special mandate must be drawn up in writing, dated and signed by both the mandatary and the patient. In the absence of such a mandatary, the patients’ rights are exercised by, in order of priority, the cohabiting spouse, the cohabiting legal partner, the cohabiting partner in fact, an adult son or daughter, a parent, or an adult brother or sister. For simplicity, the mandatary or other person determined by Article 14 § 1 will be referred to in the rest of this chapter as “the Article 14 Representative”. It should be emphasised that this is not the same as a “administrator” who can be appointed by the courts to manage a person’s patrimonial or non-patrimonial affairs pursuant to Articles 492 ff. of the Belgian Civil Code.
The right to refuse treatment or withdraw consent
By virtue of Article 8 § 4 of the Law of 22 August 2002 on Patients’ Rights, the patient has the right to refuse a particular treatment or to withdraw his prior consent at any time. The refusal or withdrawal of consent is recorded in writing at the request of either the patient or the physician, and put in the patient’s medical file. However, the fact that the patient has refused a particular treatment does not affect his/her rights under Article 5 of the same law, notably the right to quality services corresponding to his/her needs, and in full respect for his/her human dignity and autonomy.
Consent to research and participation in clinical trials
The conduct of clinical trials and experiments on human beings is regulated by the Law of 7 May 2004 on Experiments on Human Beings, and also falls within the scope of Article 91 of the Code of Medical Ethics. A person cannot be subjected to scientific observation or used purely for research purposes. A person cannot be subjected to procedures which could cause the slightest inconvenience and which are not therapeutically beneficial without his/her fully informed consent in writing, or in the case of a person unable to give his/her consent, without the fully informed consent in writing of his/her guardian. In the case of incurable illness, it does not have to be demonstrated that the research will be therapeutically beneficial. Article 6 of the Law of 7 May 2004 on Experiments on Human Beings requires that consent must also be obtained in writing by the physician for a patient’s participation in a clinical trial. For persons suffering from a mental disorder or who are unable to express their consent, Article 8 provides, in effect, that the Article 14 Representative can give the consent. At any time, the patient or the Article 14 Representative can decide to quit the clinical trial. Any biomedical research or clinical trial must be approved by the medical ethics committee of the National Council of the Order of Physicians (Articles 11 ff.). Where an order for judicial protection is made pursuant to the new Article 492 of the Belgian Civil Code, the Justice of the Peace must rule expressly on whether or not the protected person has the legal capacity to consent to in an experiment pursuant to the Law of 7 May 2004.
The legal status of advance directives
As a general rule, Belgian law does not use the term “advance directive” or “advance declaration” except in the specific context of the Law on Euthanasia of 28 May 2002. There are many other laws, however, which require prior consent for certain acts, notably the Law on Patient’s Rights, the Law on Transplant of Human Organs, and the Law on Experiments on Human Beings. The term “Advance Directive” is used colloquially to describe a document in which a person seeks to deal with some or all of such consents (or refusal of consent) in advance, and especially to deal in advance with the case where the person becomes incapable of expressing his/her wishes. In addition, an “Advance Directive” can also appoint another person as the first person’s Article 14 Representative for the purpose of consenting to treatment in the future, and/or as a personal confidant. However, where an order for judicial protection is made pursuant to the new Article 492 of the Belgian Civil Code, the Justice of the Peace must rule expressly on whether or not the protected person has the legal capacity to consent to medical treatment, to participation in clinical trials or to the donation of organs while alive. Thus the legal status of such an advance directive has to be examined disposition by disposition. The validity of each disposition will depend on the relevant law governing that disposition (consent to treatment, consent to participation in experiments, appointment of a representative, etc.).
Conditions surrounding the writing, validity and registration of an advance directive
For the reasons explained in section above, the conditions of validity of an advance directive have to be examined separately for each disposition, having regard for the law governing that disposition.
What an advance directive can cover
An advance directive can cover anything for which the law requires prior consent or appointment, namely:
- consent to or refusal of certain types of treatment, including non-conventional treatment;
- designation of the Article 14 Representative to act on the patient’s behalf if the patient should become incapable of acting him/herself;
- consent to donation of organs or tissue while still alive;
- consent to participation in clinical trials; -
- formulation of an advance declaration concerning euthanasia in the event that the patient becomes unconscious. (In this latter case the declaration must have been made in the last five years, and certain registration formalities have to be complied with).
Obligation to comply with instructions contained in an advance directive
The question whether the physician is obliged to comply with instructions contained in an advance directive has to be examined by reference to the type of instruction under consideration. The underlying principle of Article 8 § 4 of the Law of 22 August 2002 on Patients’ Rights is that the wishes of the patient must be respected. Thus if the patient’s written instructions refuse a certain treatment the physician must comply. However, the fact that the patient may have refused a particular treatment does not affect his/her rights under Article 5 of the same law, namely a right to quality services corresponding to his/her needs, and in full respect for his/her human dignity and autonomy.
It follows also from this underlying principle that the scope of a patient’s consent, if any, to donation of organs must not be exceeded, as also the scope of his/her consent, if any, to take part in clinical trials. It should be noted that a physician is under no legal obligation to comply with a patient’s advance declaration concerning euthanasia. The Law on Euthanasia of 28 May 2002 merely provides the physician with protection against criminal prosecution if he/she carries out an act of euthanasia within the strict conditions laid down by the law. Thus the question whether the physician complies with the patient’s advance declaration in this respect is solely a matter of professional ethics for the physician.
Amending, renewing and cancelling advance directives
Consent or authorisation discussed above can be revoked at any time in writing signed by the patient. The amendment or renewal of consent or appointment would have to be accomplished respecting the same formalities as for the original consent or appointment. Regarding an advance declaration concerning euthanasia, the Law on Euthanasia of 28 May 2002 simply says that the declaration can be withdrawn at any time, but does not prescribe any formalities for such withdrawal. In practice, if a patient were to do anything that cast doubt on his/her advance declaration concerning euthanasia, the physician would not act.
Issues surrounding the loss of legal capacity
Mention should be made of Article 513 of the Belgian Civil Code, which provides a regime designed to protect one spouse against the prodigality or weakness of mind of the other spouse. If a married person demonstrates an inability to manage the joint property as well as his/her own property, or presents a danger for the family interest, the other spouse may apply to the court to have the powers of management withdrawn and conferred on the petitioning spouse or on a third party. A defect of this regime is that there is no legal supervision of the management by the petitioning spouse, unlike the case when an individual is placed under protection and an administrator is appointed pursuant to Article 492 of the Belgian Civil Code, inserted by the law of 17 March 2013.
The law of 17 March 2013 reformed the whole of the Belgian regime for protection and representation of individuals who, for reasons of health, are not able to manage their patrimonial or non-patrimonial rights without assistance. These provisions apply whatever the cause of the individual’s inability to manage his/her affairs. They are not specific to Alzheimer’s disease or any other neurological or pathological complaint.
Proxy decision making
Since the reform introduced by the law of 17 March 2013, there are basically two regimes for protection of persons having difficulty in managing their affairs: (i) extra-judicial protection and (ii) judicial protection accompanied by the appointment of an administrator pursuant to Article 492 of the Belgian Civil Code. Such an administrator can be given powers of proxy decision-making in relation to a person’s assets and/or in relation to exercise of certain of a person’s personal rights, such as choice of place of residence, exercise of patient’s rights, etc. This is an enlargement of the old regime of Article 488bis under which proxy decision-making powers could only be conferred in relation a person’s assets.
Conditions for the adoption of protective measures and appointment of an administrator
Pursuant to Article 488/1 of the Belgian Civil Code, the conditions for adopting protective measures in relation to an individual follow:
“A person of full age who, due to his or her state of health, is completely or partially incapable, even temporarily, of managing his patrimonial or non-patrimonial affairs in the normal manner without assistance of other measure of protection, may be placed under protection if and to the extent that his interests so require.”.”
When the Justice of the Peace makes an order for judicial protection, he must decide which personal legal acts the person concerned is incapable of carrying out, having regard for that person’s personal circumstances and state of health. At the same time,or in the alternative, the Justice of the Peace may make an order for judicial protection of assets having regard for the nature of these, and the state of health of the person concerned. An order for judicial protection of assets determines which acts a person is incapable of carrying out in relation to his or her assets. See Article 492/1 of the Belgian Civil Code.
The making of an order for judicial protection pursuant to Article 492/1 formally “opens the administration” of the protected person. See Article 495 of the Belgian Civil Code. It is then incumbent on the Justice of the Peace to appoint an administrator (“administrateur/””) The administrator can be given powers simply to “assist” the protected person in the accomplishment of certain acts, or to carry out those acts as the “representative” of the protected person.
It can be seen that the regime of judicial protection introduced by the law of 17 March 2013 provides for greater flexibility than the old regime under Article 488 bis of the Belgian Civil Code. The Justice of the Peace can protect a person’s non-patrimonial rights and patrimonial rights. He/she can decide which rights the person can exercise without assistance, which acts can be exercised with the assistance of an administrator, and which acts must be carried out by an administrator. Certain acts are, in any event, subject to prior approval of the Justice of the Peace, or can be made subject to prior approval.
Certain patrimonial rights cannot be exercised by or with the assistance of the administrator at all – see Article 497/2 of the Belgian Civil Code. If a person is declared incapable of exercising these rights, there is no way they can be exercised. These rights are:
- Consent to marriage
- Petitioning for annulment of marriage, divorce or separation
- Determination of the conjugal domicile
- Consent to dispose of the family dwelling
- Recognition of parenthood of a child or consent to such recognition
- Opposition to an action to determine maternity or paternity of a child
- Consent to adoption
- Exercise of parental authority over the person’s child
- Declarations of commencement or termination of legal cohabitation
- Consent to sterilisation
- Consent to medically assisted pro-creation
- Declaration of firm conviction that sex is the opposite of that stated in birth certificate
- Request for euthanasia
- Request for an abortion
- Consent to acts affecting one’s physical integrity or intimity
- Consent to use of embryos in vitro for research purposes
- Refusal of autopsy on one’s child of less than 18 years of age
- Consent to taking of blood or blood derivatives
- Making of gifts inter vivos, except presents that are proportional to the assets of the protected person
- The making or revocation of testamentary dispositions
The exercise of political rights listed in Article 8 § 2 of the Constitution
How is the adoption of protective measures and the appointment of an administrator arranged? The person concerned (“the protected person”) or any other person interested may request the Justice of the Peace to make an order for protection and to appoint an administrator. The Justice of the Peace may also take such measures as a matter of course when a petition has been made to place the person under observation. The petition must be supported by a medical certificate. The Justice of the Peace then collects all the necessary information and designates an expert doctor to give an opinion on the state of health of the person concerned. The person and his/her spouse or parents are summoned to court and are heard, if required in the presence of their lawyer. The Justice of the Peace may also decide to visit the person in his/her home, if necessary.
Who can be appointed administrator?
The Justice of the Peace usually appoints the spouse or partner, a member of the immediate family or, if necessary, a person in whom the person to be protected has confidence. Within 15 days the clerk of the court publishes details of the administrator in the Moniteur Belge / Belgisch Staatsblad. Any modification to or revocation of the powers of the administrator must also be published. The administrator must be informed that s/he has been appointed within three days of the decision and must reply in writing within eight days stating whether s/he accepts the appointment.
The duties and responsibilities of administrators
An administrator has the duty of managing the patrimonial and non-patrimonial rights of the protected person. (Separate administrators can be appointed to handle patrimonial and non-patrimonial rights respectively. For simplicity, the following discussion will refer just to “the administrator”.)
The administrator must exercise his/her functions diligently with the same care as s/he would exercise over his/her own affairs. The Justice of the Peace defines the extent of the powers of the administrator, taking into account the nature and the composition of the property to be managed and the state of health of the protected person.
In fulfilling his/her duties, the administrator may obtain assistance from one or more persons acting under his/ her responsibility. The administrator is responsible for controlling the living and treatment expenses of the protected person and must place at his/her disposal the necessary amount to ensure the improvement of his/her situation. In addition, s/he is required to ensure that social legislation in favour of the protected person is applied correctly.
Measures to prevent misuse of power by the administrator
If the interests of the administrator are in conflict with those of the protected person, s/he must obtain special authorisation from the Justice of the Peace. In addition, certain restrictions may be imposed on him/her. Specific authorisation must be obtained from the Justice of the Peace to do any of the following non-patrimonial acts:
- change the residence of the protected person;
- exercise patient’s rights pursuant to the Law of 22 August 2002
- represent the protected person before the courts, whether as petitioner, claimant or defendant in matter concerning the protected person’s non-patrimonial rights.
- Specific authorisation must also be obtained from the Justice of the Peace for the following patrimonial acts:
- represent the protected person in court as petitioner in certain procedures and legal acts in matters concerning the protected person’s patrimonial rights;
- dispose of his/her movable or immovable property;
- borrow and/or consent to a mortgage;
- acquire real property, enter into an agreement for joint ownership (“indivision”) or consent to any request concerning real estate property rights;
- reject an inheritance, or accept it on condition that the debts do not exceed the
- value of the assets;
- accept a donation or receive a legacy;
- grant an agricultural or commercial lease or any lease with a term of more than nine years;
- reach a compromise or settle any claim made by or against the protected person, or agree to arbitration.
- continue a business. (The Justice of the Peace may appoint a special administrator to continue the business of the protected person, under the supervision of the administrator).
Apart from the cases where an administrator is obliged to obtain specific authorisation from the Justice of the Peace, there are various reporting requirements designed to protect the patient against misuse of powers. For example:
Within one month of being appointed, the administrator must make a report concerning the nature and composition of the property to be managed and transmit it to the Justice of the Peace and to the protected person.
Every year, and also at the end of his/her mandate, the administrator of patrimonial rights must submit his/her accounts to the Justice of the Peace and the protected person. The administrator of patrimonial rights must submit a report every three years.
The administrator is obliged to inform the protected person of any legal acts carried out on his/her behalf.
Protection of the protected person’s dwelling and furniture
The dwelling of the protected person and his or her furniture must remain at his/her disposal as long as possible. However, if it becomes necessary - or if it is in the interests of the protected person - to dispose of them (e.g. in the event of hospitalisation or long-term institutionalisation) special authorisation from the Justice of the Peace is required.
Nevertheless, souvenirs and other objects of a personal nature must be kept at the disposal of the protected person.
Provisions for the sale of real estate
If it is considered to be in the interests of the protected person, his/her real property may be disposed of by public sale. This must be carried out in the presence of the administrator before the Justice of the Peace of the canton in which the property is located. The administrator may request authorisation of sale by private contract if this is in the interests of the protected person. In this case, the Justice of the Peace must explain the justification for a private sale under his/her authorisation.
Remuneration and liability of administrators
The Justice of the Peace may arrange for the administrator to be paid for his/her services. In such cases, the amount of such payment cannot exceed three percent of the protected person’s total income. In addition, the Justice of the Peace may arrange for the administrator to be paid for exceptional duties performed by him/her.
Duration of the measure
In principle an administrator is appointed for an indefinite period, but s/he is obliged to submit an annual report on his/her management of the protected person’s affairs. The appointment of the administrator may be revoked by the court and a new administrator appointed upon the petition of any person having an interest.
The right to appeal
A right of appeal exists from the decision of the Justice of the Peace to the Court of First Instance. The Court of First Instance (“Tribunal de première instance”/ “Rechtbank vaneerste aanleg”) has jurisdiction to reconsider the matter de novo, that is to say, to re-examine both the facts and the law. From the Court of First Instance there is an appeal to the Supreme Court (“Cour de Cassation”/ “Hof van Cassatie”) but only on a point of law.
Powers of attorney
Conditions for making a power of attorney
A power of attorney or mandate is an authorisation to act on someone else’s behalf in a legal or business matter. The attorney is a fiduciary for the principal, meaning that s/he must be completely honest with, and loyal to, the principal in his/her dealings with the principal. It is possible to grant a “springing” or contingent power of attorney, i.e. a power of attorney that only enters into force after some other defined future act or circumstance, but care should be exercised in specifying exactly how and when the power springs into effect. This may be used to allow a spouse or family member to manage the grantor’s affairs once illness or injury renders the grantor physically incapable of acting. This is now referred to as “extra-judicial protection”.
The new Article 490 of the Belgian Civil Code requires that a power of attorney that has, as its object, the extra-judicial protection of an individual, must be registered in a central register kept by the Royal Federation of Belgian Notaries. When a Justice of the Peace is faced with a request for an order of protection, the register is consulted to see if a power of attorney exists. If a power of attorney exists, the Justice of the Peace can decide whether it is compatible with an order for protection, and if so, the Justice of the Peace determines the conditions under which the power of attorney can continue to be exercised. Alternatively, the Justice of the Peace can bring the power of attorney to an end.
How powers of attorney are arranged
If the attorney is being paid to act for the principal, the contract is usually separate from the power of attorney itself. If such contract is in writing, it is a separate document, kept private between them, whereas the power of attorney is intended to be shown to various other people. However, a power of attorney may be verbal as well. For some purposes, the law requires a power of attorney to be in writing, notably in the case for the transfer or acquisition of real estate. A power of attorney may be special or limited to one specified act or type of act, or it may be general. As observed above, when the objective of the power of attorney is to organise “extra-judicial protection”, it must be registered in the central register kepy by the Royal Federation of Belgian notaries.
Duration and revocation of powers of attorney
Unless the power of attorney is expressed to be irrevocable, the grantor may revoke it at any time by simply telling the attorney-in-fact that it is revoked. It is also advisable to inform third parties. If the principal does not inform third parties and it is reasonable for the third parties to believe that the power of attorney is still in force, the principal may continue to be bound by the acts of the agent falling within the scope of the power of attorney. As observed above, once an order for protection is made, the Justice of the Peace may bring the power of attorney to an end.
Capacity In Specific Domains
Marriage and divorce
In general, and as far as the person concerned has not lost his/her legal capacity that person remains free to marry and/or divorce. However, when an order for judicial protection is made pursuant to Article 492 of the Belgian Civil Code, the Justice of the Peace must rule expressly on whether or not the protected person has the legal capacity to consent to marriage, and to petition for annulment, divorce or separation. In any event, these are not acts that can be carried out by the administrator.
As long as a person has not lost his legal capacity, s/he retains the capacity to vote in governmental and local elections. Should it be practically impossible for the person concerned to go to the polling station, s/he can grant a power of attorney to someone else to vote on his/her behalf. If an order for judicial protection is made pursuant to Article 492 of the Belgian Civil Code, the protected person would retain legal capacity in relation to all political rights, such as the right to vote, unless stated otherwise by the judicial order for protection. In any event, such rights cannot not be exercised by the administrator on the protected person’s behalf.
As long as the person concerned has not lost his legal capacity, s/he retains the capacity to contract. However, once an order for judicial protection is made pursuant to Article 492 of the Belgian Civil Code, the Justice of the Peace must rule on whether the protected person has legal capacity to sell assets, contract a loan, to mortgage or charge his/her assets, to grant an agricultural lease, a commercial lease or a lease of more than nine years, to renounce to rights under a will or succession, to accept a gift or testamentary bequest, to bring or defend court actions, to conclude an agreement of joint ownership (“indivision”), to purchase real property, to settle court proceedings or enter into an arbitration agreement, to conduct a business, to consent to a request concerning real property rights, to conclude a contract relating to matrimonial property, to carry out acts of day to day management of a business or to administer the assets of a minor person.
As far as concerns the contractual acts in respect of which the protected person is declared not to have legal capacity, these can be carried by or with the assistance of the administrator. However, for the acts mentioned under the title “Measures to prevent abuse … “above, the authorisation of the Justice of the Peace is required.
All legal acts performed by the protected person but over which an administrator had authority are null and void. Nullity may only be requested by the protected person or his/her administrator. The request must be made within five years of the relevant act.
As long as a person has not lost his/her legal capacity, s/he retains the capacity to dispose of his/her goods by will and/or by gift. However, once an order for judicial protection is made pursuant to Article 492 of the Belgian Civil Code, the Justice of the Peace must rule expressly on whether the protected person has legal capacity to make gifts or testamentary dispositions.
In general, a person who commits a tort is liable and must therefore pay compensation for any damage incurred. However, pursuant to Article 1386bis of the Belgian Civil Code, the court can rule that a person in a state of madness13, serious mental imbalance or debility shall be held liable for all or part of the damage for which s/he could have been held liable if of full mind. In so doing, the Court must consider what is just having regard for the circumstances and situation of the parties. Thus, compensation can be claimed from a person who commits a tort, even if that person has Alzheimer’s disease. It is therefore advisable for such person to take out civil liability insurance (if necessary, through his/her provisional administrator).
In general, a person who commits a criminal act will be held criminally liable. However, pursuant to Article 71 of the Belgian Criminal Code, there is no crime when at the moment of the offence the offender was in a state of insanity. Depending on the qualification of the act by the Justice of the Peace, people with Alzheimer’s disease may escape criminal liability on the basis of Article 71 of the Belgian Criminal Code. However, this does not exempt them from civil liability (see above)
Last Updated: Thursday 09 February 2017