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Enduring Power of Attorneys

by Dr Mary Rose Micallef – Junior Associate

Introduction

The introduction of Article 1864A of the Civil Code brought about innovative additions to the institute of mandate law. Power of attorneys (POA) (prokura) fall under the realm of this ancient institute of mandate.

A prokura can be defined as an instrument whereby a person (the mandatary) acts on behalf of another (the mandator). Powers are conferred to the mandatary, so that s/he is able to fulfil the wishes of his/her mandator.
Given todays’ realities, the prokuri are considered to be convenient instruments and have become indispensable within the contracting world. Prior to the introduction of the abovementioned article, the prokura would terminate as soon as the mandatary becomes incapable to manage his own affairs.

In other words, as soon as a mandator loses his/her mental faculties the prokura is immediately extinguished. In these cases, family members would have had to resort to the Court of Voluntary Jurisdiction to obtain an interdiction or incapacitation decree.

The court would then appoint a curator who would manage the incapacitated person’s affairs. These procedures were however, considered as cumbersome and costly. Additionally, the incapacitated person would have been deprived from all his/her civil abilities – whatever is decided/contracted in his name was done independently of his/her wishes.

Article 1864A introduced the concept of enduring power of attorneys. In anticipation of future incapacities persons may now opt to issue this special kind of prokura that would endure any eventual incapacities. In fact, the law speaks of “a mandate given by a person of full age in anticipation of his incapacity for the latter to take care of the mandator or to administer his property” .

Administration of property entails that the mandatary is empowered to administer and manage the assets of the incapacitated mandator (similar to the traditional powers that are often conferred by the traditional standard form prokuri.)

In additional to the administration of property, the mandatory may also be entrusted with the care of the mandator. The term ‘care’ relates to medical treatment, personal welfare and personal wellbeing decisions, amongst others. The mandatary may also take decisions that concern the custodial care or the habitual place or residence of the mandator.

The Requisites

The enduring power of attorney must be drawn up by a notary public, in the presence of two witnesses, and by virtue of a public deed. The notary is obliged by law to obtain a medical declaration which declares that the enduring power of attorney is necessary for the best interests of such prospective incapacitated mandators.

The notary is also obliged to register such enduring mandate in the Public Registry within 15 working days. This notion of registration is innovative, as the traditional prokura required no registration whatsoever.

Registration is a safety valve, as the legislator acknowledged that such mandates confer significant powers to the nominated mandatary. Moreover, such mandatary would be acting without the prying eyes of the mandator. By virtue of this special mandate, the mandatary would be acting on behalf of an incapacitated person – something was unheard of prior to the introduction of article 1864A.

Court of Voluntary Jurisdiction

Another safety valve that has been imposed by the legislator is the active intervention of the Court of Voluntary Jurisdiction in connection to such enduring powers.

The enduring power of attorney may only be activated after: a) the mandator becomes incapable to manage his own affairs; b) after the due approval of the Court of Voluntary Jurisdiction upon an application by the mandatary.
In addition, the court may impose further conditions, that it may deem necessary.

Termination of the Enduring Power of Attorney

The termination of such instrument is also done by virtue of a public deed. The termination shall be accompanied by a sworn medical certificate that confirms that the incapacity of the mandator has ceased. Such termination is also subject to the approval of the Court of Voluntary Jurisdiction. The notary is obliged to register any terminations that concern enduring powers of attorney in the Public Registry.

In conclusion, before undertaking such mandate, mandators must ensure that s/he appoints a person whom s/he faithfully trusts. This instrument filled the void of the traditional prokura as enduring power of attorneys are endures incapacity. These powers are ideal only if they are properly and specifically regulated by the advanced directives as issued by the mandator.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Mary Rose Micallef on maryrose@abalegal.eu.