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Guardians of the weak

Presently, if someone is not capable of taking care of one’s assets, usually due to a mental disorder or condition, one is either interdicted or incapacitated through an application filed at the Civil Court (voluntary jurisdiction). This is done for various reasons, the primary one being so that the parents or somebody else can be appointed as a curator to administer their property because of their incapacity.

Interdiction is more severe than incapacitation. Incapacitation is accorded first of all if the application is drawn up for incapacitation to be given or, secondly, if the court feels that there are not sufficient reasons for interdiction to be awarded.

Incapacitation means that the person will be unable to sue or be sued, to administer one’s property such as borrowing money and hypothecating one’s property.

Interdiction goes a step further and the person so interdicted will not be able to carry out even acts of mere administration.

Incapacitation is less severe than interdiction. This can be seen from the role assigned to a curator of a person so incapacitated, which is simply to help and assist that person whereas in interdiction the curator does not help or assist the person so interdicted but acts on his or her behalf. Thus, a person so interdicted will be stripped of the right to perform any acts including mere acts of administration.

Interdiction, therefore, is more severe than incapacitation.

However, it is being proposed that, alongside interdiction and incapacitation a third status be introduced. This is a guardianship order. Such orders are also applied to persons who, due to a mental condition, are unable to take care of their assets.

What is so different from interdiction and incapacitation? First of all, guardianship orders are more humane in the sense that guardians are there to help the person subjected to a guardianship order to participate in society. Moreover, the will of the person subjected to a guardianship order must be respected and “given effect to the maximum extent possible”. In fact, the Bill opines that the freedom of choice of the person subjected to a guardianship order will only be restricted if necessary.

An interesting fact to note is that, in the Bill, it is being proposed that a Guardianship Board is set up to assess applications filed in pursuit of guardianship orders. Appeals from such decisions are to be filed at the Civil Court (voluntary jurisdiction).

It is also interesting to note that, whereas guardianship is to fall within the same title regarding interdiction and incapacitation, procedurally it is dealt with differently.

For interdiction or incapacitation to be pronounced and an eventual curator appointed, an application needs to be filed at the Civil Court (voluntary jurisdiction). On the other hand, in the case of a guardianship order, an application needs to be filed at the Guardianship Board that is being proposed.

Is this adequate? Should guardianship orders be decided by a board and not by a court?

It transpires that the board will have many powers belonging to the courts. In other jurisdictions, guardianship orders are usually issued by courts or by tribunals.

In New South Wales, a guardian’s role is to simply cater for the needs of the person subjected to a guardianship order. This is in line with what is being proposed in the Bill because, unlike in interdiction, a guardian’s role is more welfare oriented than a curator’s role. In fact, the person subjected to a guardianship order, be it in New South Wales or in Malta when this is introduced, will “restrict the rights and freedom of the person with the disability as little as possible” (Guardianship Tribunal, Information – Guardianship Orders, what happens after the hearing? 2008, p. 1).

In New South Wales, appeals can be filed in the Supreme Court or the Administrative Decisions Tribunal whereas in Malta, it is being proposed that such an appeal is filed at the Civil Court (voluntary jurisdiction).

Presently, no further appeals lie from decrees issued by the Civil Court (voluntary jurisdiction). If one feels aggrieved by the decision taken by such court, one can start proceedings in the First Hall (Civil Court). Therefore, why is it that for guardianship orders one can only resort to the Civil Court (voluntary jurisdiction) at appeal stage? In any case, if the Guardianship Board will act in the stead of a tribunal or a court, would it be opportune for an appeal to be filed at the court of voluntary jurisdiction?

It is interesting to note too that the introduction of the guardianship order is being made in the spirit of the United Nations Convention on the Rights of Persons with Disabilities. This is a very welcoming note and, hopefully, other provisions found in other conventions can be applied to our domestic legislations.

[email protected]

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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