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

This research aims to fundamentally reshape the system of legal measures for empowerment & protection of vulnerable elderly persons in the Netherlands. A new balance between the empowerment and protection of elderly needs to be found. The current Dutch system of legal measures of adult protection (curatele: plenary or full guardianship; bewind: financial guardianship or protective trust; and mentorschap: personal guardianship), is outdated.

Firstly, because it is still based on the old paradigm of protection: elderly persons with deteriorating mental facilities are protected by taking away their legal capacity and appointing a legal guardian to represent and protect their interests. This is in conflict with the requirements of the 2006 UN Convention on the Rights of Persons with Disabilities (UNCRPD), which clearly rules out measures automatically taking away legal capacity.

Secondly, the Dutch system does not satisfy the wishes of the present-day generation of elderly persons, who want more empowerment to be able to manage their own affairs as long and as much as possible. In order to avoid the application of statutory measures affecting their legal capacity, present-day elderly massively choose to make a living will (levenstestament). The levenstestament is a new, voluntary instrument, not affecting legal capacity. It allows elderly persons to choose their own legal representative and to make tailor-made arrangements for the future. This instrument, however, is not yet regulated by law and there are no mandatory safeguards protecting the elderly from abuse by the appointed representative.

All in all, a fundamental change is imperative. This change requires extended thorough research into both theory and practice, involving both academics and practitioners, and combining the existing knowledge and experience of national and foreign academics as well as national professionals across the whole knowledge chain.

The acquired knowledge will be used to draft a legislative proposal for a new modern, empowerment-based system of statutory and voluntary measures of legal protection of elderly in the Netherlands.

Duration of the project

2022 - 2026

Awarded grant

2,038,380 euros (of which 30.322 euros for the UG), obtained from the Dutch Research Agenda (NWA – NWO)

Contact persons at our Faculty

Prof. mr. dr. L.C.A. (Leon) Verstappen
Drs. A.M. (Alma) Erenstein

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