2010: Legal capacity and proxy decision making
Issues surrounding the loss of legal capacity
Article 189 of the Civil Code states that:
- A major who is in a state of imbecility or other mental infirmity or is prodigal, may be interdicted or incapacitated from doing certain acts, as provided in articles 520 to 527 inclusive, of the Code of Organization and Civil Procedure”
According to article 524 of the Code of Organization and Civil Procedure:
- If no sufficient cause for the interdiction is made to appear, it shall be lawful for the court by a decree to order, if the circumstances of the case so require, that the person whose interdiction is demanded be incapacitated from suing or being sued, from effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his property, or performing any act other than an act of mere administration, without the aid of a curator to be appointed in the same decree.
- It shall also be lawful for the court, if it deems it necessary, to incapacitate any person from performing all or any of the acts of mere administration, entrusting the performance thereof to a curator in such manner as the court may deem fit to direct.
This means that interdiction is a higher degree of deprivation of legal competence that comprehensively covers both personal and property issues. Incapacitation, on the other hand, is applicable for certain acts or categories of acts.
Consequently, interdiction and incapacitation could be described as two different degrees of deprivation of legal competence, the former being more comprehensive and far reaching than the latter.
Proxy decision making
During the process of interdiction or incapacitation, the court may decide to appoint a tutor or a curator. The provisions relating to the tutorship of minors apply to the curatorship of people who have been interdicted (insofar as they are applicable). The tutorship of minors is covered by articles in 159 to 192 of the Civil Code.
Conditions for appointment of a guardian
A tutor is appointed by the court on the demand of any person (159 (1) of the Civil Code).
Who can be a guardian
According to article 160 of the Civil Code, the tutor must be a competent person chosen firstly from amongst relatives, with priority given to the closest blood relative. The person’s best interests must always be borne in mind.
Article 161 of the Civil Code may also be applicable to adults with incapacity. It states:
- It shall be lawful for the court to appoint more than one tutor.
- Where more than one tutor have been appointed the court may at any time, either of its own motion or upon the demand of any of the tutors, specify their respective duties; and, until such time as particular duties shall have been assigned to each of them, each of the tutors shall have all the powers and duties of a tutor, and they shall all be jointly and severally liable for the acts of each of them.
- Where any of the tutors dies or otherwise ceases to be tutor, the tutorship shall be exercised by the other tutor or tutors unless the court, of its own motion or upon the demand of any person shall have appointed another tutor in his stead.
According to article 163 of the Civil Code, the following cannot be appointed tutors:
- (a) persons who have not attained majority;
- (b) persons who are not vested with the free administration of their property or who are notoriously incompetent to administer property;
- (c) persons who are or are about to be, or whose spouse or relatives by consanguinity or affinity up to the degree of uncle and nephew, are, or are about to be involved in a lawsuit with the minor, in which the status of such minor, or a considerable part of his property is at stake;
- (d) undischarged bankrupts;
- (e) persons who have been sentenced to the punishment of imprisonment for a term exceeding one year, or to any punishment for an offence affecting the good order of families, or for fraud;
- (f) persons who are of a notoriously bad character, or manifestly untrustworthy or negligent;
- (g) persons who are trustees of property for the benefit of the minor (person with incapacity).”
The duties and responsibilities of guardians
The tutor is responsible for the care of the person with incapacity and for representing him/her in all civil matters, and administering his/her property as a bonus paterfamilias (i.e. a good head of the family) (article 172).
How the financial affairs of the ward are handled
The court may decide that any precious articles, money or securities be deposited in a place specially designated for such articles or alternatively in another safe place, but may at any time decide on alternative arrangements for the money and securities (article 178).
Article 180 further stipulates that it shall not be lawful for the tutor, without the authority of the court, to:
- collect or transfer any capital belonging to the adult with incapacity,
- take money on loan except in case of urgency,
- accept or renounce any inheritance,
- accept any donation or legacy subject to any burden,
- refer any matter to arbitration or effect any compromise, or alienate, hypothecate, or make any emphyteutical grant of immovable property, or let out property for a time exceeding eight years, in the case of rural property, or four years, in the case of urban property, or the ordinary time according to usage, in the case of movables.
When a tutor requests authorization to accept an inheritance on behalf of the ward, the court may decide to allow the tutor to make a description of the property contained in the inheritance instead of making an inventory (as required under article 848), provided that the tutor makes a sworn oath as to its authenticity (article 180.2).
Where a lease has been granted for a longer period of time than that stated in article 180.1, the term shall be reduced to the duration stipulated in article 180.1 with effect from the date of the contract (article 180.3).
At the time of appointment of the tutor (or later, in a subsequent decree), the court may grant the tutor a general authority in respect to all or any of the above-mentioned acts (article 180.4).
According to article 181(1), the tutor shall, after deducting necessary expenses for the ward, profitably invest any income or other money, amounting to more than EUR 116.47, which s/he collects.
Measures to protect the ward from misuse of power
Before appointing a person as tutor, the court orders the future tutor to make an inventory of the future ward’s property or, depending on the circumstances, a description of the property (sworn on oath to be authentic) and to mortgage his/her own property up to a certain amount. The future tutor is also ordered to manage the property of the person with incapacity properly and on termination of his/her office to render a true and faithful account of his/her administration (article 167.1). Alternatively, the court may decide that someone else carries out the afore-mentioned inventory or description (article 167.2).
Tutors must keep a book of receipts and administrative costs. Their accounts should include receipts for any expenses of a considerable amount. The accounts book, if sworn on oath by the tutor to be authentic, shall serve as sufficient proof of small expenses (article 182.1-3).
Suspension or removal of the tutor
The court may suspend or remove from office any tutor or curator for various reasons outlined in article 163.b-f, for failure to submit accounts, for false accounts or for any other valid reason (article 169.1).
Complaint to a competent court in case of neglect or abuse
If a tutor abuses his/her authority or neglects to fulfill his/her duties, anybody may lodge a complaint on behalf of the person with incapacity and the court shall give a warning to the tutor or take any other appropriate measures (article 175.2).
Compensation and liability of guardians
According to article 523 (3) of the Code of Organization and Civil Procedure, the curator may at the time of appointment or later ask the court for remuneration. When making a decision, the court takes into account the nature of the services to be provided and the property of the person who is interdicted.
Tutors may only be credited with such expenses as are considered useful or, with respect to the position and the means of the person with incapacity, customary” (article 182.4).
A tutor who does not profitably invest the ward’s income shall be liable to pay interest unless s/he can prove that s/he took all due care but did not succeed in securing a profitable and safe investment (article 181.2). Similarly, a tutor is liable for any loss occasioned by his/her failure to take the necessary precautions that a good head of family (bonus paterfamilias) would be expected to take when making the investment (articles 181.2 and 181.3).
Duration of guardianship
According to article 183 (1), when the tutor ends his/her term of office, for any reason, s/he shall render his/her accounts to his/her successor in the office of tutor. If the person with incapacity dies during the tutorship, the accounts shall be rendered to his/her heirs (article 183.2).
If the tutorship terminates for any of the reasons mentioned in article 158, the accounts shall be rendered to the person who was under such tutorship (article 184).
Any balance which may be due by the tutor shall bear interest ipso jure (i.e. by the law itself) from the day of termination of the tutorship (article 185.1).
Article 183 (2) also states that the interest on any sum that the ward may owe the tutor shall only start to be calculated from the day on which a request for payment is made by the tutor after the termination of his/her office and by means of a judicial act.
Continuing powers of attorney
Continuing powers of attorney are not used in Malta and would not be considered as legally valid documents.
Capacity in specific domains
Marriage and divorce
According to the Marriage Act of 1975, a person who is subject to tutorship may not validly contract a marriage without the consent of the tutor (article 3). If either of the partners contracting the marriage is incapable of contracting “by reason of infirmity of mind”, whether interdicted or not, the marriage will be considered void (article 4).
Either of the partners may take action to have the marriage annulled even if that person is not considered capable by law to sue or be sued. Such action, once initiated, may be continued by any of the heirs (article 19.2).
Divorce is not possible in Malta (Scerri, 2008). Annulment is different to divorce as it implies that the marriage was void from the beginning.
Article 54 of the Malta Constitution stipulates that a person cannot be qualified to be elected as a member of the House of Representatives if s/he is “interdicted or incapacitated for any mental infirmity .../… or is otherwise determined in Malta to be of unsound mind.” Similarly, a person who is interdicted or incapacitated for any mental infirmity by a court in Malta or is otherwise determined in Malta to be of unsound mind, is not qualified to register as a voter for the election of members of the House of Representatives (article 58).
Capacity to work
If a person employs someone for a job or service who is not competent or if s/he does not have sufficient grounds to consider that person competent, s/he shall be liable for any damage that that person causes to others through incompetence in carrying out the job or service (article 1037 of the Civil Code).
A person who is interdicted or incapacitated is not capable of contracting, and any contract entered into by a person who does not have the use of reason is considered null (articles 967 and 968 of the Civil Code). However, a person who is capable of contracting cannot claim nullity of a contract on the grounds that the other contracting party did not have such capacity (article 973).
Any person not subject to incapacity under the provisions of the Civil Code may dispose of or receive property by will (article 596 of the Civil Code). However, those who are interdicted on the grounds of insanity, and those who are not of sound mind at the time of the will, are considered incapable of making wills (article 597).
A will made by a person subject to incapacity is considered null, even if the incapacity ceased before that person’s death (article 599).
A person who is officially responsible for someone of unsound mind may be considered liable for any damage caused by the latter, if s/he fails to exercise due care and attention in order to prevent the act (article 1034 of the Civil Code). It is explained in article 1035 that people of unsound mind are not obliged to make good any damage caused to third parties unless they acted mischievously. Nevertheless, if injured parties cannot recover damages from those responsible for the person who caused the damage, the court may order damages to be paid either partly or in full from the property of the person of unsound mind (article 1036).
According to article 33 of the Criminal Law a person is exempt from criminal responsibility if at the time of the act or omission of which s/he is accused, such person was in a state of insanity.
Insofar as interdiction is concerned (i.e. where a person has been deprived of any legal capacity), there is no doubt that s/he is exempt from criminal responsibility. However, in cases where a person has only been declared incapable, criminal responsibility is assessed on a case by case basis.
Last Updated: Wednesday 28 March 2012