The giving up of property in return for private care for the elderly : addressing lacunae in Maltese law

Abstract

The demand for elderly care in Malta has been of concern in recent years, both due to the waiting lists for admission into State homes and the high costs for admission into private care homes. This paper focuses on the exchange system being used in the private sector where elderly are exchaning property in return for care and accommodation, which property is being sold to fund such services provided. The first section analyses the contractual documents and contract of sale used in admission, whilst the second section discusses the calculation of the cost of care and accommodation in line with the value of property being exchanged and the possibility of recovering remaining funds after death. The third section examines the succession rights of family members, claiming prejudice to their inheritance and the possibility of recovering the property after their relative’s death, before providing recommendations on regulating this mechanism legally. The contract of sale used is incorrect when property is being transferred without payment in money, although all other contractual requirements under contract law seem to be satisfied. Certain factors, somewhat similar to the serviġi principles, are used to calculate the value of care in relation to the value of the property transferred, and recovery of funds clauses are possible, however there is no enforcing legislation for either and it is left up to contractual negotiations. Furthermore, relatives of the elderly resident have no succession rights or actions to recover the property once it is sold through a legal contract of sale. These conclusions point to the need for legislation governing the private sector of elderly care and accommodation in Malta, particularly where this involves the transfer of property of elderly. The motive of addressing such lacunae is the protection of the elderly, particularly where they are parting with their most valuable asset in a time of need.