The enduring power of attorney : do the benefits outweigh the associated risks?

Abstract

Mental capacity or the lack thereof, unlike death, remains uncertain, and therefore while it is commonplace for legal professionals to carry out the drafting and publication of testamentary acts, they have historically been witness to the lack of prior planning for a potential and subsequent event of mental incapacity. Given the need to tackle prospective mental incapacity issues, the Enduring Power of Attorney (EPA) was introduced under Maltese law offering individuals a legal instrument, in the form of protection, of self- determination decision-making which in turn better protects the individual’s autonomy. The EPA, a creature of fairly recent origin, is dealt with in the Civil Code under Article 1864A, where it describes an EPA as “A mandate given by a person of full age in anticipation of his incapacity to a mandatary, for the latter to take care of the mandator or to administer his property …” in the case that he or she becomes incapable of managing his or her affairs personally. Hence, it is essentially a legal document enabling an individual of full age to assign another individual to act as a mandatary by granting him or her the legal authority to act on his or her behalf in the occurrence whereby the mandator becomes mentally incapable of handling his or her own assets and personal affairs. With the use of a pre-planned EPA, the mandator is granted an essential document which will eventually serve its purpose at that point in time when it is most necessary. This is because the coming into effect of the mandate is only possible when the mandator loses mental capacity or becomes mentally infirm. In this respect, Maltese law requires that a person is of “full age” and possesses the mental capacity at the time of the setting up of the EPA. A person of full age who would like to set up an EPA must be at least eighteen years of age and must possess the full legal capacity, meaning that he or she must be aware of the seriousness and after-math effects of the instrument which he or she is signing and moreover the nature and extent of the estate contained therein. Therefore, the above denotes that the mandator should still have contractual capacity and should be able to manage their own affairs personally when deciding to confer the power onto the mandatary for an anticipated later stage in his or her life. Just like a normal Power of Attorney (PoA), the mandator should not grant a mandate that exceeds his or her legal capacity, as otherwise this would ultimately cause the mandate to be null ab initio. It is of utmost importance that the mandate is executed prior to the mandator losing capacity as if it were the case that when the EPA is being set up, the mandator has already lost his or her mental capacity, this legal instrument will be invalid and the subsequent attainment of capacity by the mandator will not result in the mandate being validated. The Maltese Civil Code5 introduced the concept of an EPA under Article 1864A with the principal intention being that of empowering vulnerable individuals who, when diagnosed with illnesses such as dementia and are still at an early stage of the diagnosis, they now have the option to think in advance and take steps in order to have their choices heard and respected at the time when they are at the mercy of others. 6 In fact, during the Parliamentary sitting wherein they reviewed and discussed the draft law, its scope was emphasized: “L-iskop oriġinali ta’ din il-Liġi huwa li nagħtu poter lill-persuna li taf li se tiġi bżonn lilħaddiehor biex jieħu deċiżjonijiet għaliha għax ma’ jkunx possibbli li hi stess tkun tista’ tagħmel dan.” 7 This study aims at presenting an analysis of the EPA under Maltese law while delving into the formalities required for the valid execution of an EPA. To this effect, a comparison will be drawn between an EPA and a normal POA highlighting the differences between the two. Furthermore, the effectiveness and commencement of the EPA will be identified while clearly defining the conditions and or event/s that would trigger such commencement. The benefits and risks associated with the range and scope of the powers available to the mandator when considering an EPA will be examined and moreover, other issues and concerns would be discussed throughout the study. A series of interviews will also be carried out with various legal professionals to assess any additional concerns that are faced from a practical perspective.