Power of Attorney

Hi

Im not sure where you obtained that first quote from, but you can definitely use a POA here in Malta and specify how you would like it set up...

Nicola

Nickys28 wrote:

Hi
Im not sure where you obtained that first quote from, but you can definitely use a POA here in Malta and specify how you would like it set up...
Nicola

Hi Nicola, I got that quote from a Malta Lawyers website.
Can you elaborate or at least point me in the right direction regarding the use of POA's in Malta?
Thanks.

I think that perhaps it has been taken it out of context..
it seems to me that it is referring to legally incapacitated persons (which is a legal term for those who have some impediment in their legal capacities) not being allowed to give a POA.. otherwise persons who are legally capable are permitted to delegate anything that they have the power to do, to another person..

Nickys28 wrote:

I think that perhaps it has been taken it out of context..
it seems to me that it is referring to legally incapacitated persons (which is a legal term for those who have some impediment in their legal capacities) not being allowed to give a POA.. otherwise persons who are legally capable are permitted to delegate anything that they have the power to do, to another person..

And that, as I understand it is my point.
In UK a POA gives power to another to act on behalf of the person if that person becomes mentally incapacitated.
In Malta what I understand is being said is that if one is mentally incapacitated another cannot operate in the same way because the person who made it is not mentally capable to give instructions, even if at the time of making the POA they were capable. It seems that anyone seeking the power has to go through the Court system irrespective of whether a POA was previously made. That is not the case in the UK where a POA does not require application to a Court for actioning (but does require adherence to the conditions and restrictions placed by the person making the POA and when executing the power the attorney must act in accordance with the Mental Health Act of 2005.

It is this difference in interpreting the differences that is causing me difficulty, that a POA in Malta is for a different purpose and operates under different conditions than a POA in UK.
And, whilst a POA made in UK is recognised it has to adhere to and operate in accordance with Maltese Law which does not allow for the same conditions.

Well to go back to the original question, POA in general and under normal circumstances, are acceptable in Malta..

What you have described now, are specific circumstances which require special attention/procedures.. Usually if one is legally incapacitated a 'guardian' is appointed to act for that person in required circumstances..
this is a purely legal matter for which you should seek specialist advice having regard to all circumstances..

As a lawyer I feel it would be unprofessional for me to comment beyond the generality of the topic of POA here.

Feel free to advise if you want to discuss privately.
Nicola

Thanks Nicola and I do appreciate what you are stating.
One reason I have mentioned a Guardianship Order is to clarify if that can be used for an adult by another adult as the report I read in ToM related to children and parents. In our case it would be spouse and spouse.

If interested here is an explanation as it is in the UK:

A Lasting Power of Attorney (LPA for short) is a document which authorises a person (an Attorney) selected by you (the Donor) to deal with your affairs on your behalf. People who have them prepared usually do so because they are concerned that they may be unable to deal with their own affairs in later life. 

There are two types of Lasting Power of Attorney: (1) A Property and Financial Affairs Lasting Power of Attorney and (2) A Health and Welfare Lasting Power of Attorney.
A Property and Financial Affairs LPA is for decisions about finances, such as selling your house or managing your bank account and a Health and Welfare LPA is for decisions about your health and personal welfare issues, such as where to live, day-to-day care or having medical treatment.
The people that you appoint to be your Attorneys in a Lasting Power of Attorney have a duty to act in your best interests and in accordance with the Code of Conduct under the Mental Capacity Act.

For sure, if we need specific legal advice I will get in touch and I fully understand why you may not wish to comment further.
Thank you.

Hi

one of the conditions for the validity of the POA in Malta is that the person granting the POA is 'capable' (legally) to grant such POA initially and must remain so for the duration of the POA for it to legally subsist..
there are other legal instruments available which might be more suitable to your needs..

Have a nice day 

Footnote. Regarding incapacity and execution of a UK POA, which clearly exists beyond the point of incapacity of the donor.
In Malta it does not.

The guiding principles of the Act are set out in five rules, which indicate how the term 'capacity' (implying in this context mental capacity) is to be interpreted:

A person must be assumed to have capacity unless it is established that he lacks capacity.
A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
The test so defined is 'decision-specific'. It can indicate an answer to the question 'Can he any longer use a gas ring safely when unsupervised?', but does not allow for wider questions to be given a firm yes/no answer when the real answer is that he has restricted capacity and so can deal with some aspects but not others. As stated in an official summary of the Act,[3] it is 'a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time'.

Apologies if boring people but I felt it necessary to go into detail as so many expats retire to Malta and may not know of some of the differences which I am discovering. Best forewarned and thus forearmed.

Oh yes, my original quote was taken from here: http://www.step.org/pdf/Malta-17-8-12.pdf

Author:
Annalise Micallef, Notary Public & Commissioner for Oaths, Micallef & Associates notaries public

Hi,
I have smoke friends who have a PoA problem here in Malta and we would be very interested to know how all this ended up- for you. Did you find a solution?

Cirius, because of the issues highlighted and the apparent 'worthlessness' of this out here, we did not proceed.
We made other arrangements.

I am wondering if My partner and myself are going to have the same problems. We have money invested or banked in Malta, that was an inheritance on my Maltese wife. My son lives in London and we would like to have him control these monies. Can anyone advise. will we be able to give him power of attorney and if so, how ?

powloo wrote:

I am wondering if My partner and myself are going to have the same problems. We have money invested or banked in Malta, that was an inheritance on my Maltese wife. My son lives in London and we would like to have him control these monies. Can anyone advise. will we be able to give him power of attorney and if so, how ?

Welcome to the forum...

Please note you have posted on an old inactive thread and so may not get a reply so it may be better for you to post a new thread on the topic.

Many thanks I will try that .