Incapacitation and guardianship or similar measures of protection of an adult in domestic conflict law and international civil procedure (with a note on substantive and procedural law)

An increasing proportion of the population is made up of elderly people. In addition, cross-border trade in civil matters is intensifying. The solutions concerning incapacitation, legal guardian or curator, or possibly other measures of protecting an adult in international trade have acquired considerable practical significance. The subject of the following comments is the theoretical and practical aspects of conflict of laws and domestic jurisdiction and recognition of foreign judgments, including the combined application of part four of the Code of Civil Procedure after the 2009 amendments and the 2011 Law – Private International Law, as well as the signalling of international agreements and the proposed solutions of the European Union of 2023. In the event that civil and guardianship law changes and the institution of incapacitation is replaced by another protective institution (e.g., by a new guardianship power of attorney, assisted or assisted decision-making), the solutions and trends will continue to be either direct (in the absence of a change in the descriptions of the scopes of the current conflict and jurisdictional norms, which will imply the need for a new understanding of the hypotheses so described) or indirect (for the application of new descriptions of the scopes, but probably similar in their dispositions to those discussed in the article). In the current national procedural and conflict-of-law norms there is a breakdown between partial or total incapacitation and legal care or guardianship (more precisely, several legal institutions so named). The basis of jurisdiction of Polish courts and authorities is increasingly broader in relation to the latter category of cases. Against the backdrop of the 2000 Convention and the 2023 EU draft regulation, both the issues of incapacitation and guardianship or curatorship are covered precisely by the more general concept of “measure of protection”, to which a uniform jurisdictional and conflict of law regulation applies (also to the recognition of foreign judgments). The combined treatment of a kind of obverse of the case (the situation requiring the support of the adult in question in the face of the inability to exercise the capacity independently) and its reverse (the means of assistance, such as the establishment and action of a guardian) can inspire the national legislator not only for terminological and legislative technique reasons, but also for substantive and pragmatic reasons. Incapacitation of an adult (or a similar institution) and the establishment of a guardian (or other personal or institutional support) are, in civil law transactions, closely related elements of a de facto single life situation.