The much-awaited guardianship law has been enacted by Act XXIV of 2012. At last, parents of children with different abilities can apply for a guardianship order. Prior to such law only interdiction and incapacitation were available. After changes made to the Bill, the guardianship order is at last part of Maltese law.
In the guardianship law as found in the Civil Code, the word ‘disability’ does not feature in article 188A(1). Rather, the term ‘condition’ is used, which is a much more politically correct umbrella term to refer to various conditions that cannot really be referred to as disabilities.
Guardianship orders are open to anyone who suffers from a mental disorder or condition that renders him incapable of taking care of his own affairs. Guardian, or guardians because there can be joint guardians, are the persons appointed to help the person under the guardianship order and they are there to safeguard the personal and proprietary well-being of such person and act instead.
They will also do anything for, or on behalf of, the person subject to a guardianship order issued by the Guardianship Board.
One of the major differences between guardianship and incapacitation and interdiction is the way guardians are appointed and the way guardianship orders are issued.
Incapacitation and interdiction have been mentioned because, firstly, guardianship orders fall under the same heading as interdiction and incapacitation in the Civil Code due to their similar and, yet, dissimilar nature.
Similar in nature because the three of them are applied in cases where persons are incapable of taking care of their own affairs. Dissimilar in the sense that guardianship orders have a restorative aspect to them because the orders are there to help the person subject to a guardianship order whereas interdiction and incapacitation render that person powerless.
Interdiction and incapacitation and the respective curators are issued and appointed respectively by the Court of Voluntary Jurisdiction. However, in the case of guardianship orders, the orders and the guardians are not handled by the Court of Voluntary Jurisdiction but by the Guardianship Board, thus taking the procedure away from the court.
The reason for that was to quicken the procedure. Nevertheless, incapacitation and interdiction do not take an unreasonable length of time to be issued and for curators to be appointed. On the other hand, board action does not mean having short proceedings. If decisions are to be fair and just there has to be a thorough procedure in every case and that even means calling the necessary experts to give their opinion.
Therefore, to safeguard against having unnecessary lengthy and bureaucratic procedures, the legislators saw fit to include a time limit within which the board must come to a decision.
Unlike in interdiction and incapacitation, the person subject to a guardianship order has his/her will respected as much as possible. Therefore, being subjected to a guardianship order does not mean that one is stopped from contributing to decision-making per se. On the contrary, his/her wishes will be taken on board and if these are in his/her interests they will be implemented. His/her welfare will also be promoted.
The guardianship order will not be a universal order. It will be tailored according to the person subjected to that order. This shows that these are not simply blanket orders to be used in the same fashion for everybody.
Since a person subjected to a guardianship order will be helped to find a place within society, the order must be tailored to suit that person’s particular needs and not all needs are the same for everybody.
This makes the order much more reasonable and suited to meet that person’s needs without it being draconian. In fact, the freedom of choice and action of the person subjected to a guardianship order will only be restricted if it is deemed necessary. In other words, his/her freedom of choice and action will be promoted and respected.
The guardian, unlike the curator in interdiction and incapacitation, has a set of obligations wherein s/he must offer support to the person subject to a guardianship order when exercising legal capacity. The keyword here is ‘support’, which shows that the guardianship order will leave the person subject to it in as much liberty as possible.
The guardian must consult with the person subject to that guardianship order in decision-making. Thus, the guardian cannot simply decide without consulting the person in question, where this is possible.
The guardian must encourage the person subject to guardianship to participate within the community and to become capable to take care of himself.
The guardian must protect such a person from neglect, abuse and exploitation and must offer due assistance.
The guardian can sign and do all necessary things on behalf of the person subjected to a guardianship order.
This law will finally help families with children having certain conditions to protect the interests of those children while not having to resort to the draconian measures of incapacitation and interdiction.
Ann Marie Mangion is a lawyer and a published author with a special interest in family and child law.