The notions of “interdiction” and “incapacitation” are governed by Article 189 of the Civil Code[1] and Articles 520-527 of the Code of Organisation and Civil Procedure (“COCP”)[2]
Individuals over the age of majority i.e. 18 years old who suffer from a mental disorder or other condition that renders them unable to manage their own affairs, or who are deemed insane or prodigal, may be declared interdicted or incapacitated through a court order. This follows a request made by any of the individuals specified in Article 521 of the COCP, which effectively restricts the individual in questions from carrying out certain actions.
For the purpose of these provisions, the term “mental disorder” is defined as stated in the Mental Health Act.[3] It refers to a “significant mental or behavioural dysfunction, characterized by signs and/or symptoms that indicate a disruption of mental functioning”. This includes disturbances in areas such as thought, mood, volition, perception, cognition, orientation, or memory, to a degree considered pathological under internationally recognized medical and diagnostic standards. Meanwhile, the term “other condition” is described in the Civil Code as a “long-term physical, mental, intellectual or sensory impairment, which, in interaction with various barriers, may impede an individual’s full and effective participation in society on an equal footing with others.”
From a preliminary reading of Article 189 of the Civil Code a lack of a clear distinction between the two concepts is revealed. The article instead, addresses both notions simultaneously as follows:
“A major who is a person with a mental disorder or other condition, which renders him incapable of managing his own affairs, or who is insane or prodigal, may be interdicted or incapacitated from doing certain acts, as provided in articles 520 to 527 inclusive, of the Code of Organisation and Civil Procedure.”
In general, if a request for interdiction is not sufficiently justified by the party submitting it, the court may instead decide to impose incapacitation on the individual concerned, provided the circumstances warrant such a measure. The concept of incapacitation is outlined in Article 524(1) of the COCP which provides:
“If no sufficient cause for the interdiction is made to appear, it shall be lawful for the court by a decree to order, if the circumstances of the case so require, that the person whose interdiction is demanded be incapacitated from suing or being sued, from effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his property, or performing any act other than an act of mere administration, without the aid of a curator to be appointed in the same decree.”
It can therefore be inferred that the distinction between interdiction and incapacitation lies in the overall degree of incapacity. This interpretation is therefore supported by Article 524(2) of the COCP:
“It shall also be lawful for the court, if it deems it necessary, to incapacitate any person from performing all or any of the acts of mere administration, entrusting the performance thereof to a curator in such manner as the court may deem fit to direct.”
The above suggests that the notion of incapacity can vary in degree, allowing the court to extend or limit incapacitation based on the specific circumstances of the case.
In such cases, the Court will appoint a curator to manage the property of the interdicted individual for a maximum period of three (3) years. This appointment may be renewed if deemed necessary, following the Court’s review of the annual sworn reports submitted by the curator.
The distinction between interdiction and incapacitation is further reflected in the responsibilities assigned to the respective curators. For example: The curator of an interdicted individual is responsible for managing the entirety of that person’s patrimony. In contrast, the curator of an incapacitated individual provides assistance in the administration of assets, rather than assuming full control. Consequently, an incapacitated person retains authority over their assets during the period of incapacitation, unlike an interdicted person.
A request for interdiction or incapacitation must be submitted by means of an application to the court voluntary jurisdiction. The application should include a detailed account of the facts supporting the request together with a list of witnesses who would be able to substantiate those facts, and any relevant supporting documentation.
According to Article 251 of the COCP, the request may be made by (1) a spouse against their partner, (2) a person against a relative by blood, or (3) an individual against someone related by marriage who may be obligated to provide maintenance. Interdiction or incapacitation takes effect from the date of the decree issued by the Court of Voluntary Jurisdiction. Consequently, any action taken by the interdicted or incapacitated individual after the issuance of the decree is null. While actions carried out before the decree are not automatically void, they may be annulled if the grounds for interdiction or incapacitation existed at the time the action was performed.
Additionally, the State Advocate may request the interdiction or incapacitation of someone unable to manage their affairs due to a mental disorder or other condition, provided that no such request has already been made by another eligible party.
Article 35 of the COCP provides that no appeal shall lie from any decree of the court of voluntary jurisdiction. If one feels aggrieved by the decision taken by such court, one will need to initiate proceedings in the First Hall (Civil Court).
In the guardianship provisions of the Civil Code, the term "disability" is notably absent from Article 188A (1). Instead, the more inclusive and politically neutral term "condition" is used, covering a range of circumstances that may not strictly be categorized as disabilities.
Guardianship orders are available for individuals who, due to a mental disorder or condition, are unable to manage their own affairs. Guardians, who may also serve jointly as co-guardians, are appointed to assist the individual under the guardianship order. Their role is to protect the personal and financial well-being of the individual and to act on their behalf. Guardians are authorized to perform tasks for or on behalf of the person subject to a guardianship order issued by the Guardianship Board.
A key distinction between guardianship and the concepts of incapacitation and interdiction lies in the process of appointing guardians and the manner in which guardianship orders are issued.
Interdiction and incapacitation, along with the appointment of their respective curators, are managed by the Court of Voluntary Jurisdiction. In contrast, guardianship orders and the appointment of guardians fall under the jurisdiction of the Guardianship Board, thereby removing the process from the court's purview.
In contrast to interdiction and incapacitation, a person under a guardianship order retains as much decision-making input as possible. Their wishes will be considered and, if aligned with their best interests, implemented, while ensuring their welfare is promoted. Unlike curators in interdiction and incapacitation, a guardian is obligated to support the person under a guardianship order in exercising legal capacity, ensuring as much freedom as possible. The guardian must consult the person before making decisions, whenever feasible, and encourage their active community participation and ability to care for themselves.
Finally, the guardian is required to protect the individual from neglect, abuse, and exploitation, while also providing appropriate support. Additionally, the guardian has the authority to sign documents and take any necessary actions on behalf of the person under the guardianship order.
For any additional information or assistance, please contact us at info@gtg.com.mt
Author: Dr Delilah Vella
[1] Chapter 16, Laws of Malta.
[2] Chapter 12, Laws of Malta.
[3] Chapter 525, Laws of Malta.