Elderly mandators of general power of attorney : problems encountered and possible remedies

Abstract

The raison d’etre behind the creation of the GPoA, was in a way to facilitate general transactions, and its impact upon commerce and estate trading cannot be underestimated. For centuries this power has retained its popularity, and usage amongst traders, and equally amongst individuals. Despite its many advantages, the GPoA has its own impediments, that generally surface in situations when its founders are vulnerable elder mandators. Research suggests this vulnerable group, in particular old persons who suffered from diminished mental capacity, are highly susceptible to suffer from financial abuse by their trusted mandatory through the medium of the GPoA. Section 1 shall portray the salient context shall be considered within this paper, being the elder mandator and powers of attorney including the connotations of financial exploitation. Section 2, shall embark on the general notions of the institute of mandate, in light of its Roman Law origins, and as per perceived within the local legislation and jurisprudence. Section 3 shall addresses the deficiencies and potential pitfalls that are prevalent between an elder mandator and his/her general powers of attorney. Section 4 shall analyse salient present remedies, safeguards and alternatives to the GPoA that are embedded within the Maltese legal system. This section shall focus upon the most significant legislative amendments including the recent enacted Act XIII of 2016, that have introduced the lasting powers of attorney within our legal system. To this effect the final chapter shall amongst others illustrate the lasting powers of attorney as per conceived under UK law, being the source of our own lasting powers of attorney. Sets of recommendations shall also accompany the comparative feature within this section.