The administration of property of others under Maltese law : what is the extent of protection afforded to vulnerable persons? : a study with special emphasis on the elderly and persons with disabilities

Abstract

There has been greater awareness on the protection of adults who become dependent upon others due to an impairment or insufficiency of their personal faculties. Preventative measures are needed to safeguard vulnerable persons, namely, the elderly and persons with mental or physical disabilities, against financial impropriety or other forms of abuse. An analysis of the different regimes incorporating the administration of property of vulnerable persons under current Maltese legislation is conducted in Chapter 1 and 2 of this thesis. These sections portray an issue of fragmented legislation found in different areas of Maltese law and recognises the need for integration of such institutions. Moreover, the thesis will delve into legal capacity, its determination and whether vulnerable persons are being divested of their legal capacity when placed under such institutions. Most institutions in the local sphere, such as interdiction and incapacitation, refer to ‘substituted decision-making’ systems. In contrast, reference will be made to new methods of ‘supported decision-making’ such as Lasting Powers of Attorney and the newly introduced article 1864A of the Civil Code. The thesis progresses to focus on the extent of protection afforded to vulnerable persons. Chapter 3 gives an analysis of forms of abuse, focusing on elder abuse and financial exploitation which often involves the misuse of property administration tools such as mandates. The final chapter also provides an analysis of the Draft Bill entitled the Protection of Vulnerable Older Persons and Adult Persons with Disability Act, as available at the time of writing this thesis. To this effect, the chapter concludes by proposing a set of recommendations and safeguards which would help to deter abuse and protect the individual whose property is being managed by someone else.