ACT No. XXIV of 2012 AN ACT to amend the Code of Organization and Civil Procedure and the Civil Code for the purpose of providing for Guardianship BE IT ENACTED by the President, by and with the advice and

I assent.

G EORGE A BELA

(L.S.)

President

7th December, 2012

ACT No. XXIV of 2012

AN ACT to amend the Code of Organization and Civil

Procedure and the Civil Code for the purpose of providing for

Guardianship

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

The short title of this Act is the Code of Organization and

Civil Procedure and the Civil Code (Amendment) Act, 2012 and this

Act shall be read and construed as one with the Civil Code,

hereinafter referred to as "the Code".

The title "OF MAJORITY, INTERDICTION AND

INCAPACITATION" of Title VI of Book First of the Code shall be

substituted by the title "OF MAJORITY, GUARDIANSHIP,

INTERDICTION AND INCAPACITATION".

Immediately after article 188 of the Code and

immediately before Sub-title II there shall be added the following

new Sub-title and articles

"Sub-title IA

OF GUARDIANSHIP

188A. (1) Notwithstanding the provisions of

Sub-title II on Interdiction and Incapacitation, a major

who has a mental disorder or other condition, which

renders him incapable of taking care of his own affairs

may be subject to guardianship.

(2)

The same shall apply in regard to a minor

referred to in article 156.

(3)

The demand for the appointment of a

guardian or of joint guardians may be made by any

person who voluntarily wishes to be made subject to

guardianship or by any person mentioned in article

189(3) of this Code or in article 521 of the Code of

Organization and Civil Procedure.

(4)

If in any civil proceedings the Court

considers that a party may need to be subject to

guardianship, the Court shall refer the matter to the

Guardianship Board established under Title IIIA of

Part II of Book Second of the Code of Organization

and Civil Procedure for its determination.

(5)

For the purposes of this Sub-title unless

the context otherwise requires, the terms "mental

disorder" and "other condition" shall have the same

meaning as assigned to them in article 189 (4) of the

Civil Code

"disability" shall have the same meaning as

assigned to it in the Equal Opportunities (Persons with

Disability) Act;

"mental disorder" shall have the same meaning

as assigned to it in the Mental Health Act

Provided that any reference in such definitions

to "disability of mind" or to "arrested or incomplete

development of mind" shall not be construed as a

reference to a mental disorder for the purposes of this

Sub-title.

188B. A guardian shall

(a)

be responsible to safeguard the

personal and proprietary well being of the

person to whose guardianship he is appointed;

(b) act instead of the person to whose

guardianship he has been appointed in matters of

a personal or of a proprietary nature during such

time when the said person is considered as not

being capable of doing any one or more acts of

civil life as specified in the Guardianship Order;

(c)

to do any other thing for or on behalf

of the person to whose guardianship he is

appointed as he may be ordered or authorised to

do by the Guardianship Board established under

Title IIIA of Part II of Book Second of the Code

of Organization and Civil Procedure or by the

Court of Voluntary Jurisdiction or as may be

prescribed by regulations made under this Sub-

title.

188C. (1) The provisions of this Sub-title shall

be construed and interpreted and every function,

power, authority, discretion, duty or right conferred by

this Sub-title or by any regulations made thereunder

shall be exercised in such manner that

(a)

the will of the person subject to

guardianship is respected and given effect to the

maximum extent possible;

(b) the welfare of the person subject to

guardianship is promoted and fostered;

(c)

the means used for the purpose of

guardianship shall be proportionate to the aims

which they are intended to achieve; and

(d) the freedom of choice and action of

the person subject to guardianship shall only be

restricted when necessary and only to an extent

that is proportionate to the aim pursued.

(2)

In the exercise of his obligations the

guardian shall act in the best interests of the person

subject to guardianship and shall

(a)

take appropriate measures to provide

the support that the person subject to

guardianship may require in exercising his legal

capacity himself insofar as this is possible;

(b) consult with the person subject to

guardianship and take into account and respect

the rights, will and preferences of the person

insofar as this is possible;

(c)

encourage the person subject to

guardianship to participate as far as possible in

the life of the community;

(d) encourage and assist the person

subject to guardianship to become capable of

caring for himself and for his property and of

making responsible judgements in respect of

matters relating to his person and property; and

(e)

protect the person subject to

guardianship

from

neglect,

abuse

or

exploitation.

(f)

provide to the person subject to

guardianship, as far as possible, any assistive

means as may be required for the proper

fulfilment of the obligations provided in this

sub-article.

(3)

Subject to the limits imposed in the

Guardianship Order or by any other decision which

the Guardianship Board may give from time to time, a

guardian may on behalf of a person subject to

guardianship sign and do all such things as are

necessary to give effect to any functions or obligations

vested in the guardian.

188D. The Minister responsible for Justice, in

conjunction with the Minister responsible for Social

Policy and the Minister responsible for Health may

make regulations for the better implementation of the

provisions of this Sub-title.

Article 191 of the Code shall be substituted by the Substitution of

article 191 of

the Code.

191. (1) A minor under tutorship may be

placed under the guardianship or interdicted or

incapacitated in the last year of his minority, and in

any such case the Guardianship Board or the Court, as

the case may be, may appoint as guardian or curator

either the tutor or any other person.

(2)

The said guardian or curator shall only

commence to administer the property as from the day

of the termination of the tutorship.".

Immediately after Title III of Part II of Book Second of

the Code of Organization and Civil Procedure there shall be added the

following new Title

"Title IIIA

OF GUARDIANSHIP

519A. (1) There shall be a Guardianship Board

(hereinafter in this Title referred to as the ‘Board’)

which shall be appointed by the President of Malta

acting on the advice of the Prime Minister given after

consultation with the Social Affairs Committee of the

House of Representatives.

(2)

The Guardianship Board shall be

composed of three members as follows

(a)

a Judge or Magistrate or a person

who has acted as a Judge or Magistrate who

shall also be the President of the Board;

(b) one

member

appointed

after

consultation with the National Commission

Persons with Disability after this has consulted

organizations working in the field of persons

with disability;

(c)

one

member

appointed

after

consultation with the relevant authority

responsible for safeguarding the rights of

persons with mental disorder after this has

consulted organizations working in the field of

persons with mental disorder

Provided that persons who satisfy the

requirements of paragraphs (a), (b) or (c) above may

be appointed as substitute members to act on the

Board in cases where any of the persons appointed

under the respective paragraph cannot hear a specific

application.

(3)

The President and the other members of

the Board shall hold office for a period of three years

and shall be eligible for re-appointment for further

terms of office

Provided that if a member of the Board is

appointed at any time after the other members, the

term of office of such member shall end on the same

date as that of the other members.

(4)

A person shall not be qualified to hold

office as member of the Board if that person:-

(a)

is a Minister, a Parliamentary

Secretary or a member of the House of

Representatives or a Mayor or a Councillor in a

Local Council; or

(b) is legally incapacitated or interdicted; or

(c)

is subject to guardianship; or

(d) has been declared bankrupt; or

(e)

has been convicted of a crime

affecting public trust or of theft or fraud, or of

knowingly receiving property obtained by theft

or fraud, or of a crime affecting the good order

of families.

(5)

The office of a member of the Board shall

become vacant:-

(a)

at the expiration of the term of

office; or

(b) if any circumstances arise that, if that

person were not a member of the Board, would

cause that person not to qualify for appointment;

or

(c)

on the resignation of that member.

(6)

The appointment of any person as a

member of the Board and the termination of office or

resignation of any such person shall be notified in the

Gazette

Provided that the failure to publish any

such appointment, termination or resignation as the

case may be, shall not prejudice the validity of such

appointment, termination or resignation.

(7)

The Board shall perform such functions

as are assigned to it in this Title and in Sub-title IA of

Cap. 16 Title VI of Book First of the Civil Code and in any

regulations as the Minister responsible for Social

Policy, in conjunction with the Minister responsible

for Justice and the Minister responsible for Health

may from time to time make.

(8)

Where in the course of the exercise of its

functions the Board becomes aware of any fact which

raises a reasonable suspicion of a breach of

professional conduct it shall refer such fact to the

appropriate authorities.

(9)

Where in the course of the exercise of its

functions the Board becomes aware of any fact which

raises a reasonable suspicion of the commission of a

criminal offence it shall report such fact to the

appropriate authorities.

(10) In the exercise of its functions the Board

shall not be subject to the direction or control of any

other person or authority.

(11) The Minister shall appoint a public

officer to act as Registrar to the Board.

(12) Unless the Board otherwise determines

the Board shall proceed with closed doors.

519B. (1) The Board, in the exercise of its

functions, shall act within a reasonable time and shall

observe the rules of natural justice. Every case shall

be heard not later than 30 days commencing on the

day it is filed before the Board.

(2)

Without prejudice to what is stated in

sub-article (1), the Board shall regulate its own

procedure

Provided that all members of the Board

shall be present at the Board’s sittings.

(3)

Evidence before the Board may be given

orally or in writing or partly orally and partly in

writing or by any other suitable means of

communication.

(4)

The President of the Board may

administer an oath, or take an affirmation.

(5)

The Board may of its own motion, or on

the application of any party to the proceedings before

it, direct the Registrar of the Board to serve through an

executive officer of the Courts or of the Board upon

any person a summons to appear before it to give

evidence and or to produce the documents specified in

the summons.

(6)

It shall also be lawful for the Board, by

means of a warrant of escort, to compel such

witnesses to attend for the purpose of giving evidence.

The Board may request that its officers be assisted by

the executive officers of the Courts or by Police in the

execution of a warrant of escort.

(7)

If any person duly summoned fails to

appear when called, such person shall be guilty of an

offence and shall upon conviction by the competent

court of criminal jurisdiction be liable to a punishment

of a fine (multa) of two hundred and fifty euro (€250)

or to imprisonment for a period of three months or to

both such fine and imprisonment.

(8)

The provisions of this Code relating to

contempt of court shall, mutatis mutandis, apply to the

Board.

(9)

Where the Board is of the opinion in a

particular case that there are circumstances which

justify it in doing so, the Board may make such orders

as to the payment of costs in respect of proceedings

before it as the Board sees fit.

(10) When in any proceedings the Board

makes an order or a decision such order or decision

shall include reasons and shall be served on any

person as may be specified by the Board.

519C. (1) The Board may appoint any person

with appropriate expertise to assist it in the course of

any proceedings before it.

(2)

The Board may, in the course of any

proceedings, require any government department,

agency or entity, local council, guardian, other entity

or other person, to report to the Board on any matter

relating to the said proceedings and it may also order

that such report be submitted to the Board within a

period of time as may be specified.

519D. (1) A demand for the appointment of a

guardian shall be made by application to the

Guardianship Board in accordance with article 188A

of the Civil Code.

(2)

The application shall contain a statement

of the facts on which the demand is founded and an

indication of the witnesses, if any to such facts.

(3)

Any documents in support of the demand

shall be filed together with the application.

519E. (1) The Guardianship Board shall cause

the person in respect of whom guardianship is

demanded to appear before it, to question such person

and, or to cause him to be examined by one or more

independent experts; and the Board may, in all cases,

subject to such conditions as it considers appropriate,

appoint a temporary guardian to act as a guardian to

such person whilst proceedings before it are pending

Provided that the appointment of a

temporary guardian shall not in any case exceed the

duration of twenty-six weeks during which period the

Board shall determine whether a Guardianship Order

should be made.

(2)

For the purpose of conducting the

examination referred to in sub-article (1), the Board

shall, where exceptional circumstances so require,

hold sittings or inspections in faciem loci at such

places as it may determine.

(3)

Where the Board considers that the

interests of justice so require, it shall appoint an

advocate for legal aid to assist the person in respect of

whom an application for guardianship has been made.

519F. (1) If the Guardianship Board finds that

there is just cause for the appointment of a guardian it

shall proceed to make such appointment and the

person so appointed as guardian shall exercise all the

functions, obligations and duties provided in respect

of guardians under Sub-title IA of Title VI of Book

First of the Civil Code and under this Title.

(2)

In determining whether or not a person is

in need of a guardian, the Board must consider

whether the needs of the person in respect of whom

the application is made could be met by other means

less restrictive of the person’s freedom of will and

action.

(3)

Where the Board makes an order

appointing a guardian in respect of a person, the order

must be as least restrictive of that person’s freedom of

decision and action as possible in the circumstances.

(4)

Where the Board makes an order

appointing a guardian it shall also order that a hearing

for the review of the order shall be held within a

specified period, not being longer than two years, as

may be stipulated in the order

Provided that the Board may at any time

of its own motion or on the application of any person

mentioned in article 188A(3) of the Civil Code hold a

hearing to review the Guardianship Order.

(5)

The Board shall through its Registrar

notify the Registrar of the Court of Voluntary

Jurisdiction of all Guardianship Orders approved or

revoked.

(6)

The Registrar of the Board shall keep an

updated register of all Guardianship Orders approved

or revoked and of the terms thereof.

(7)

No information taken from the register

mentioned in sub-article (6) may be given by the

Registrar, unless the Board would not have

ascertained itself of the legitimate interest of the

person requesting the said information.

519G. (1) The Board may appoint as a

guardian any person who has attained the age of 18

years, is ordinarily resident in Malta and consents to

act as such if the Board is satisfied that such person

(a)

is in a position to be able to perform

all the functions, obligations and duties provided

in respect of guardians under Sub-title IA of

Title VI of Book First of the Civil Code and

under this Title; and

(b) will act in the best interests of the

person subject to guardianship; and

(c)

is not in a position where his

interests conflict or may conflict with the

interests of the person subject to guardianship, in

that, such interest shall be communicated to the

Board as soon as it is known or is suspected that

it exists; and

(d) is not a Minister, a Parliamentary

Secretary or a member of the House of

Representatives or Mayor or Councillor in a

Local Council; and

(e)

is not legally incapacitated or

interdicted; and

(f)

is not subject to guardianship; and

(g) has not been declared bankrupt; and

(h)

has not been convicted of a crime

affecting public trust or of theft or fraud or

misappropriation, or of knowingly receiving property

obtained by theft or fraud, or of a crime affecting the

good order of families

Provided that the Board may appoint joint

guardians of the person subject to guardianship each

of whom shall perform such functions, obligations and

duties as the Board may determine.

(2)

In determining whether a person is

suitable to act as the guardian of a person subject to

guardianship, the Board shall take into account the

wishes of the person in relation to whom an

application for guardianship has been filed, the

desirability of preserving existing family and social

relationships and the compatibility of the person

proposed as guardian with the person subject to

guardianship.

(3)

A guardian is not entitled to receive any

fee, remuneration or other reward for acting as such

unless the Board otherwise specifies in the order

appointing the guardian.

(4)

Where it appears to the Board that a

proposed guardian, even if temporary, or a person

appointed to act as a guardian does not fulfil the

requirements of sub-article (1) for appointment as

guardian, it may appoint any other person suitable to

act as guardian.

(5)

The Board may also order the substitution

of a guardian at any time during the term of a

Guardianship Order for good and sufficient cause.

519H. (1) A guardian who is authorised in a

Guardianship Order to administer monies or other

property of a person subject to guardianship shall

within two months of his appointment submit to the

Board a list of assets and liabilities, that result, of the

person subject to guardianship as at the date of issue

of the Guardianship Order.

(2)

A guardian who receives monies or other

property due to the person subject to guardianship

shall keep a separate account and record of such

monies or other property.

(3)

A guardian shall notify and seek the prior

approval of the Board in respect of any transfer of or

imposition of a burden upon property belonging to a

person subject to guardianship

Provided that any transfer of or

imposition of a burden on any property belonging to

the person subject to guardianship made in

contravention of the provisions of this sub-article shall

be null and void

Provided further that nothing in this sub-

article shall be construed as limiting the powers of the

guardian to provide for the ordinary personal needs of

the person subject to guardianship.

(4)

A guardian shall also submit to the Board,

an income and expenditure account confirmed on oath

in respect of the guardianship

(a)

every year; and

(b)

upon revocation or other termination of

the guardianship; or

(c)

upon the termination of a temporary

Guardianship Order.

(5)

Within thirteen weeks from the death of

the person subject to guardianship, the guardian shall

provide the Board with a detailed report of his

administration of the assets of the person subject to

guardianship including, income, expenditure and

administration of property and, where relevant,

funeral and burial expenses.

(6)

Any person interested as a creditor,

beneficiary, family member, or otherwise in any

monies or other property administered by a guardian

may apply to the Board to intervene and give its

advice or any order appropriate in the circumstances

regarding any matter arising out of the administration

of the said monies or property by the guardian and the

Board, after having heard the guardian, may make

such order in relation to such application as the

circumstances of the case may require.

519I. (1) A guardian may request the advice

of the Board regarding any matter relating to the

Guardianship Order or the exercise of any of the

functions, obligations and duties of the guardian under

the Guardianship Order.

(2)

The Board shall order that notice of a

request under sub-article (1) be served on any person

that it directs.

(3)

The Board may:-

(a)

approve or disapprove of any act

proposed to be done by the guardian;

(b) give such advice as it considers

appropriate;

(c)

make any order or decision as it

considers necessary or amend or revoke the

Guardianship Order.

(4)

No legal proceedings shall be instituted

against a guardian on account of an act or thing done

or omitted by the guardian under any order or decision

or on the advice of the Board made or given under this

article unless in representing the facts to the Board the

guardian shall have acted fraudulently, or shall have

wilfully concealed or misrepresented facts.

519J. (1) Any person mentioned in article

188A(3) of the Civil Code may, by application,

request the Board to revoke a Guardianship Order and

the Board, after due consideration, may revoke

guardianship in respect of any person if the Board

determines that

(a)

the cause which gave rise to the

guardianship has ceased to exist; or

(b) there is good and sufficient cause to

revoke such guardianship.

(2)

When a person subject to guardianship

dies the guardian shall report the death to the Board

within a period that shall not exceed a maximum of

one week from the demise of the person who was

under his guardianship.

519K. (1) If the Board receives information

that a person with disability or other condition is

suffering serious damage to his physical, emotional or

mental health or well-being as a consequence of ill-

treatment, abuse or neglect, the Board may appoint a

person or more than one person to visit the person

with disability or mental disorder for the purpose of

investigating the case and preparing a report to the

Board on the situation of the said person with

disability or mental disorder. Such a report is to be

made to the Board within four days or any other time

limit as may be stipulated in the order

Provided that the Board, if and when it

deems it appropriate, may demand that such

information be confirmed on oath.

(2)

Where any person appointed by the Board

in terms of sub-article (1) to investigate the case

informs the Board that he was unable to carry out this

function due to obstruction by any person, the Board

may request the assistance of the police and such

police assistance shall be provided for the purpose of

the execution of the said function.

(3)

On receipt of the report, the Board may,

after granting any person concerned a right to be

heard, request any appropriate authority to take such

measures as the said authority may deem necessary for

the purpose of addressing any ill-treatment, abuse or

neglect or the consequences thereof.

(4)

For the purpose of providing such

assistance as may be required in terms of sub-article

(2) the police shall have the power to enter any

premises and to use such force as is reasonably

necessary to enable the person or persons appointed

by the Board to visit the person with disability or

mental disorder in accordance with the provisions of

sub-article (1).

(5)

No matter or thing done by any member

of the Board, the Registrar or any other person acting

under the direction of the Board in good faith in the

exercise or purported exercise of any power or duty

conferred or imposed upon the Board or upon any

member of the Board, the Registrar or any said other

person by or under this Title or under in Sub-title IA

of Title VI of Book First of the Civil Code, shall make

any member of the Board, the Registrar, or any said

other person personally subject to any action, liability,

claim or demand.

519L. (1) Any person who feels aggrieved by

a decision of the Board may by application appeal

therefrom to the Court of Voluntary Jurisdiction.

(2)

An appeal under sub-article (1) shall be

filed not later than twenty days from the date of the

decision of the Board.

(3)

An appeal filed under this article shall not

stay the execution of the decision taken by the Board

unless the Court of Voluntary Jurisdiction, upon an

application of the appellant, decides otherwise.

519M. (1) Any person mentioned in sub-article

(3) of article 189 of the Civil Code or in article 521 of

this Code may request the Court of Voluntary

Jurisdiction to convert an interdiction or an

incapacitation into a Guardianship Order and the said

Court may consult the Guardianship Board.

(2)

Where the Court considers that there are

sufficient grounds for the conversion referred to in

sub-article (1) to be made, it shall issue a

Guardianship Order and notify the Guardianship

Board of this fact.

519N. The Minister responsible for Justice, in

conjunction with the Minister responsible for Social

Policy and the Minister responsible for Health may

make regulations for the better implementation of the

provisions of this Sub-title and without prejudice to

the generality of the foregoing such regulations may

(a) prescribe matters in relation to the

practice and procedures of the Board;

(b) establish the procedure for entry and

removal of registrations of Guardianship Orders

and access, including electronic access, to such

registrations and prescribe the format of the

register to be kept by the Registrar under this

Title;

(c) prescribe forms to be used for the

purposes of this Title;

(d) establish offences against regulations

made under this Title and establish a range of

fines which shall not exceed a maximum of a

fine (multa) of three thousand euro (€3000) for

any contravention of any provision of

regulations made under this Title, or for non-

compliance with any provision thereof or with

any requirement imposed under such provision;

(e) prescribe the fees to be paid in

respect of the administration of monies or other

property which are the subject of Guardianship

Orders;

(f)

prescribe the fees due to the registry,

as well as other fees including fees to be paid to

the experts nominated by the Board under this

Title.".

Article 22 of the Equal Opportunities (Persons with Consequential

amendment to

Disability) Act, shall be amended as follows

article 22 of the

Equal

Opportunities

(a)

in paragraph (r) thereof, for the words "disabilities; and",

(Persons with

there shall be substituted the words "disabilities;";

Disability) Act.

(b)

in paragraph (s) thereof, for the words, "by Malta.", there

shall be substituted the words "by Malta; and"; and

(c)

immediately after paragraph (s) thereof, there shall be

added the following new paragraph

"(t)

to monitor Guardianship Orders.".

Passed by the House of Representatives at Sitting No. 531 of the

3rd December, 2012.

M ICHAEL F RENDO

Speaker

R AYMOND S CICLUNA

Clerk to the House of Representatives