The introduction of the enduring power of attorney under Maltese law : a critical and comparative analysis

Abstract

As medical science develops, the average life expectancy increases and so does the possibility that one will become either temporarily or permanently incapacitated. Unlike death, the occurrence of mental capacity remains uncertain. This may help to explain why planning ahead for future potential mental incapacity remains an option that is sometimes overlooked. In the light of the need to address potential incapacity issues, the EPA was recently introduced under Maltese law offering vulnerable adults suffering from deprivations of age and other disabilities, an instrument of selfdetermined substituted decision-making which better safeguards the latter’s autonomy and self-determination. The thesis aims to critically and comparatively examine the introduction of the EPA under Maltese law. The thesis provides a glimpse of the legislative background prior to the introduction of the EPA and enlists the subsequent legislative measures which brought about its introduction. Chapter 1 critically analyses Article 1864A of the Civil Code which regulates the EPA under Maltese law. Chapter 2 examines the fiduciary relationship that exists between the mandator and the mandatory acting under an EPA. The concepts of substituted and supported decision-making are also considered in the light of the relevant provisions of the UNCRPD. Chapter 3 focuses on the comparative aspect of the subject matter and covers the jurisdictions of England and Wales, Ireland, Germany and France. Reference is made to the Oviedo Convention, Recommendation 2009/11 and Convention XXXV for the International Protection of Adults of 13th January 2000. Following an analysis of the situation in foreign jurisdictions, it transpires that even though the EPA under Maltese law is governed by strict formalities, there is room for improvement. In view of this, a number of anti-abuse measures and further recommendations serving as the basis for potential improvements under Maltese law are set forth in Chapter 4. The thesis also looks at the future of Advance Directives in Malta which, as resulted from the study of the thesis, require considerate thought and legislative planning.