Oosje wants her donated painting back!

Recently I came across the remarkable story of Oosje Silbermann (88). She had had one of the showpieces of the 20th-century art department at the Rijksmuseum seized. Seven years ago, she herself donated the precious painting by Bart van der Leck to the museum, "to propitiate the gods. Her granddaughter had a brain tumor and feared for her life. A voice in her head dictated to Oosje to make a sacrifice. If she did, her granddaughter would live. Seven years after the gift, the granddaughter is healthy and Mrs. Silbermann is returning to her earlier gift. She was in a confused state at the time. Due to her granddaughter's illness, she said she was incapacitated with respect to the donation. Because she acted under the influence of mental illness at the time, she now wishes to destroy the donation. The situation of confusion lasted for several years.

Mrs. Silbermann's case is remarkable. As far as is known, there was no protective order in place about this lady, which might have protected her from this "unwanted donation. In this blog, I will focus on adult protection and especially that in an international perspective. As a result of globalization and increasing trade, people are increasingly living in a country other than their home country. Foreigners stay in the Netherlands after an expat stay after retirement or conversely Dutch people enjoy their retirement in a beautiful and sunny foreign country. As a result, children no longer always live in close proximity to their parents. In addition, due to improved medical care, people are getting older and therefore more and more families have to deal with elderly parents' confusion and diseases of old age such as Alzheimer's disease. With the increasing geographical distance between parents and children, it may take longer to discover the unfortunate actions of the confused parent resulting in the need for legal action to reverse them. Adult protection will therefore play an increasingly important role in our society in the near future, nationally and internationally. Below, I will first briefly describe the Dutch protection measures relevant to this case, and then discuss the international perspective.

Protective measures from the Dutch perspective

In the Netherlands, guardianship offers the possibility to protect an adult against himself if he is temporarily or for a longer period not fully able to properly perceive his property interests. This may be either the result of his physical or mental condition or the result of profligacy or having problematic debts. In this situation, the subdistrict court may appoint an administrator to manage his assets on behalf of the entitled person.

A more far-reaching protective measure is receivership. It can be ordered for the same reasons, with the proviso that the court must also determine that the less far-reaching measure (of guardianship) no longer offers the desired protection in the given situation. Unlike the administration order, the guardianship does not focus only on the protection of property interests, but on all the interests of the person concerned, i.e. also non-property interests. Had one of the aforementioned protective measures been pronounced on Mrs. at the time, she would not have been able to make the donation without the cooperation of the administrator in the event of receivership. The donation would then have been invalid unless the Rijksmuseum had been able to prove that she had no knowledge of the receivership and was therefore in good faith. Since Jan. 1, 2014, most administrations are registered in the courts' Central Curatorship and Administration Register (CCBR). However, administrations declared before Jan. 1, 2014, are usually not public, unless the court has decided otherwise. This grant took place in 2013, so whether that would have provided protection in this case is questionable. If Ms. had been placed under guardianship, she would have become incapacitated. This means that she could no longer make any business decisions on her own without the consent of her guardian. The moment she enters into a donation agreement with the Rijksmuseum without the permission of her guardian, this agreement is voidable. The curator can reverse the agreement. All receiverships are registered in the CCBR. If Ms. had been under guardianship, the Rijksmuseum could have been objected to for not being in good faith when entering into the donation agreement.

Painting donated by a lady in receivership in Spain?

But what if the lady, as a pensionado, had emigrated to Benidorm years ago and had been placed under 'tutela' by her son there at the time the donation was made to the Rijksmuseum. The 'tutela' is the Spanish protective measure, similar to the Dutch guardianship. What then would have been the consequence for the donation to the Rijksmuseum? Could or should the Rijksmuseum have known at all about the protective measure in Spain?

Is the Spanish court's decision eligible for recognition in the Netherlands?

There is no treaty (or EU regulation) between the Netherlands and Spain regulating the mutual recognition of court decisions in the field of guardianship. Issues concerning protection of adults are covered by the Convention on the International Protection of Adults of January 13, 2000 (CPR). Although the Netherlands has signed the Convention, it has not yet ratified it. As a result, there is currently no international regulation governing whether a foreign guardianship decision can be recognized in the Netherlands. According to the legislative history, the failure to ratify the Convention is primarily based on financial arguments and is not based on objections to the Convention in principle. For this reason, the Supreme Court ruled in a judgment dated February 2, 2018, that it can be inferred that the government endorses anticipatory application of the HVV. For that reason, it must be accepted that, where appropriate, there is room for anticipatory application of provisions of the CRPD. For the same reason, there is no objection to applying the rules of the HVV in the case of a court decision from a country which, like the Netherlands, is not a party to the Convention (Spain).

The Convention broadly follows the structure of the 1996 Hague Convention on Child Protection. A protection measure taken by the competent court of a state party to the Convention is recognized by operation of law in all other states party to the Convention. However, a protection measure can only be enforced in another State bound by the Convention after it has been declared enforceable or registered for enforcement on the application of an interested party. Recognition and enforcement can only be refused on a limited number of grounds. Both the Netherlands and Spain are not treaty countries, so the rules of international cooperation do not apply here, but the treaty provisions can only be applied by the courts by analogy. Since Ms. has her habitual residence in Spain, the Spanish court had jurisdiction to issue the 'tutela'. The Spanish court does so applying its own law on the basis of the so-called 'Gleichlauf principle'. The Spanish ruling will have to show that the measure was pronounced after a proper judicial process with sufficient guarantees, for example by hearing experts (forensic doctor, psychiatrist), the woman herself, her close relatives (son) and the public prosecutor. If this is the case, recognition of the measure is unlikely to encounter problems in the Netherlands, as the Netherlands has a similar measure with similar legal effect. Therefore, the 'tutela' will not be considered manifestly incompatible with Dutch public order.

Furthermore, it will remain to be determined whether there is any subsequent measure, incompatible with the 'tutela', that was taken by a court in another country, which is not a party to the HVV but had jurisdiction to take such a measure. Nor does that situation arise here. Therefore, there are no grounds for refusal on the basis of which the Spanish protection measure should not be recognized in the Netherlands. Nor may the Dutch court review the content of the Spanish court's decision. The Spanish 'tutela' should therefore be recognized in the Netherlands and can be invoked against the Rijksmuseum.

What legal consequences does guardianship have for legal capacity of the guardian in Spain?

As a result of the 'tutela', Ms. was declared by the Spanish court to be incompetent to properly represent her own interests and manage her assets, including the exercise of the right to vote. The incapacity to act under Spanish civil law also entails the incapacity to act independently in court. Since this measure must be recognized in the Netherlands, its legal consequences must also be accepted.

Article 14 HVV provides that in the case of implementing acts, the law of the State where the protection measure is carried out applies. According to the explanatory report to the HVV, the concept of implementing act should be interpreted broadly. Since the measure of 'tutela' can be equated with the Dutch measure of guardianship, it must be assumed that only the tutor, like the guardian under Dutch law, could validly conclude the donation agreement.

The moment Ms. concludes a donation agreement with the Rijksmuseum without the consent of her tutor, this agreement is voidable. This means that the tutor can reverse the agreement. The 'tutela' unknown in our country differs from the (Dutch or Spanish) guardianship in one principle. The tutor, unlike the Dutch guardian, cannot validate the legal act afterwards. For any civil proceedings in the Netherlands against the Rijksmuseum, the tutor needs authorization from the court under Spanish law. It is consistent with the aforementioned broad interpretation of Article 14 HVV to assume that the required judicial authorization can be granted by the Dutch court.

Registration of 'tutela' in CCBR?

Finally, the question arises whether the 'tutela' could also have been registered in the CCBR. Pursuant to Article 1:391 BW, there is the CCBR, in which notes are kept of legal facts relating to receivership. After the Dutch court has determined that a foreign guardianship judgment should be recognized in the Netherlands, it is susceptible to registration in the CCBR, by registration of the Dutch court judgment, in which the foreign protection measure has been recognized. The recognition of the foreign protective measure has the effect that it can be invoked against third parties, and therefore it is important that this is also known as such to third parties. In that case, the Rijksmuseum could not have relied on ignorance of the legal incapacity of the lady.

In conclusion

Ms. Silbermann's story once again underscores the importance of Adult Protection. Especially now that the ageing process is increasing, we are getting older and older and continue to participate actively in social life into old age, it is important that legal protection keeps pace with this. Vulnerable adults must be adequately protected from overly intrusive and hasty contracting parties. To date, adult protection is still somewhat the underdog in family law, nationally and internationally. It would be good if legislators would be guided a little less by financial arguments in ratifying or not ratifying the CRPD, but by the very thing for which the CRPD was created: protection of vulnerable adults. It is to be hoped then that the convention will be ratified soon.

Published: 14 October 2020 in International family law
Please contact Sandra (S.L.A.) Verburgt
Oosje wants her donated painting back!