Despite a living will, do you still need guardianship and/or mentorship?
By means of: Priska Voskuil – van Dijk
A living will is popular. In a living will, you arrange who will look after your financial and non-financial interests if you are no longer able to do so yourself (for example due to illness or an accident). Despite a living will, a judge can still establish guardianship and/or mentorship if you are no longer able to look after your financial and non-financial interests and there are circumstances or valid reasons to deviate from the living will. “Guardianship” refers to the representation of financial interests. “Mentorship” refers to the representation of non-financial interests (such as medical care, use of medication, etc.). The most serious form of representation is guardianship. This will not be discussed here. A lawyer is not required for the court to establish guardianship and mentorship. The application forms can be easily downloaded from www.rechtspraak.nl. The further course of the procedure is also described here.
When does a judge decide – despite a living will – to impose guardianship and/or mentorship? Or when does the judge deviate from the living will? What facts and circumstances play a role in this? The case law is pragmatic and casuistic. Where the execution of a living will has sufficient guarantees, the will of the person who drew it up is respected. However, where the execution of the living will falls short, the judge will protect the person who drew it up. Not by pushing aside free will, but by putting the intention behind the living will, namely good representation of personal interests, first if that unexpectedly turns out differently. After all, no one draws up a living will with the intention of unleashing a family quarrel or being disadvantaged by dishonest management.
In short, judges deviate from the living will if it no longer offers the protection that the beneficiary had in mind when drawing up the living will. In this case, the actions of the proxy as “a properly acting proxy” play an important role, which may also include his/her role in disturbed family relationships. This does not detract from the living will as an instrument to put things in order during life. In fact, it strengthens its value, as the drafters are reassured that their will will be respected, but the judge intervenes if the execution turns out differently.
Here is a chronological overview of published rulings from January 1, 2015 to January 1, 2018 on www.rechtspraak.nl:
East Brabant Court 16-03-2015: No, no deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOBR:2015:1548
- District judge has no reason to doubt father's capacity to make decisions when drawing up a living will
- The subdistrict court judge spoke to the father and he once again confirmed the wish to grant power of attorney to 2 daughters (as stated in the living will).
- Disturbed family relationship is not sufficient grounds for placing a person under guardianship
East Brabant Court 26-03-2015: Yes, despite living will, guardianship over part of assets (PGB funds), rejection of mentorship
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOBR:2015:1997
- Pragmatic decision to establish a trust over PGB funds, due to formal requirements of the agency
East Brabant Court 31-03-2015: Yes, despite living will, guardianship
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOBR:2015:1998
- Father is susceptible to door-to-door sales and registration of guardianship in the public Central Guardianship and Guardianship Register offers protection
The Hague Court 15-07-2015: No, no deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2015:2121
- No need to appoint a second administrator. Court takes into account that the interested party and the administrator are of the opinion that the wishes of the beneficiary as stated in the living will should be respected
Amsterdam Court of Appeal 02-02-2016: Yes, deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHAMS:2016:346
- Request of beneficiary to appoint independent and professional administrator
- Not acting as a properly acting attorney in view of the appropriation of funds
- Conflicting interests regarding housing rights holder
Court of North Holland 13-02-2017: No, no deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBNHO:2017:475
- Disturbed family relationship is not sufficient grounds in this case
- No other relevant circumstances
Court of North Holland 13-02-2017: No, no deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBNHO:2017:474
- Disturbed family relationship is not sufficient grounds in this case
- No other relevant circumstances
Amsterdam Court of Appeal 11-04-2017: No, but mentorship in accordance with the (new) wishes of the beneficiary
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHAMS:2017:1252
- Court finds mother competent
- Disturbed relationship between mother and daughter
- Daughter wants appointment of independent and professional administrator and mentor
- Mother wishes to appoint her son as administrator and mentor (in accordance with living will)
Court of Central NL 14-09-2017: Yes, despite living will, guardianship and mentorship
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBMNE:2017:4768
- Son with power of attorney lives in Australia and leaves the actual care to others (and is therefore not suitable as a mentor)
- Incorrect use of power of attorney (transfer of funds to private without a clear reason) (and therefore not suitable as an administrator)
- Disturbed family relationship important in appointing independent and professional administrator and mentor
Court of North Holland 12-10-2017: Yes, despite living will, guardianship
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBNHO:2017:8481
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBNHO:2017:8483
- The authorized representative is not sufficiently transparent (does not provide openness regarding finances and prevents his brother from visiting his mother)
- Seriously disturbed family relationship
- Appointment of independent and professional administrator and mentor
Court of Central NL 12-10-2017: No, no deviation from living will
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBMNE:2017:5104
- Beneficiary repeats wishes as recorded in living will
Arnhem-Leeuwarden Court 23-11-2017: Yes, despite living will, guardianship and mentorship
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHARL:2017:10353
- Arrangement in living will does not sufficiently protect the interests of the beneficiary, also in view of seriously disturbed relationships and mistrust within the family, in particular between the authorised spouse of the beneficiary on the one hand and the children of the beneficiary on the other.
- The authorized spouse has failed to put the interests of the beneficiary first (including problems with the choice of nursing home, method of care and following the advice of (treating professionals)
- Uncertainty regarding the precise background of certain transfers of unusually high amounts
- Authorized spouse has limited physical and mental capacity. It is very questionable whether the beneficiary realized that through the husband's living will the grandson would (solely) have a say in her interests
- The Court gives the parties the opportunity to put forward the names of professional administrators and mentors
Zeeland-WB Court 13-12-2017: No
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBZWB:2017:8544
- The beneficiary repeats the wishes as recorded in the living will
- Alleged lack of transparency of administration is insufficient reason
- Disturbed family relationship is not sufficient grounds in this case
