John M. Cachia and Miriam Camilleri
December 2012 was a milestone for all those working with and on behalf of vulnerable people in the fields of mental disorder, disability and old age. This is because of the unanimous approval by our Parliament of two separate pieces of legislation, namely the new Mental Health Act and amendments to our civil legislation to introduce guardianship.
The Office of the Commissioner for Mental Health and Older People was at the forefront, together with Kummissjoni Nazzjonali Persuni b’Diżabilita and a number of NGOs, in assisting our parliamentarians in their deliberations for the introduction of guardianship for those who are “incapable of managing their own affairs” as a result of a mental disorder or some other long-term disabling condition.
Guardianship should not be taken to mean that all those with a mental disorder or other long-term disabling condition are incapable of managing their own affairs. In fact, the new Mental Health Act assumes as the starting point that a person with a mental disorder has the mental capacity, and hence the ability, to manage his or her affairs. We believe that the same principle should be applied to those with other long-term disabling conditions. However, as in everything else, we often observe a spectrum of varying abilities and it is frequently the grey area in between the two extremes that creates uncertainties and offers the greatest challenges and opportunities.
Until recently, the only avenues open to provide protection and assistance to the vulnerable were those of incapacitation or interdiction. In these instances, a curator would be appointed in order to take over and manage the persons’ affairs in part or in full. Whilst this system was undoubtedly beneficial to many, over the years it has also resulted in a number of people being completely – or to a large extent – deprived of their ability to contribute to their own decision-making or at least have their wishes and preferences given any due weight, with a resulting loss of their essential human rights and dignity.
The concept of guardianship, as embedded in recent legislation, provides a more humane and dignified opportunity to protect the rights of those who find themselves unable to fully or partially take care of their own affairs or partake in the acts of civil life. Whilst remaining essentially a form of substitute decision-making, guardianship legislation incorporates the core essential elements normally included in forms of supported or assisted decision-making.
Hence the new legislation obliges the guardian to consult with the person subject to guardianship and to respect and take into account – insofar as is possible – his or her will, preference, freedom of choice and action. At the same time, the guardian is obliged to promote and foster that person’s welfare and protect him or her from neglect, abuse and exploitation, whilst at the same time continuously encouraging and assisting the person to become capable of caring for himself or herself and to make responsible judgements.
The mechanism of seeking and obtaining guardianship has also been rendered more beneficiary-friendly in that the law also provides for the possibility of vulnerable people themselves asking for a Guardianship Order. This is particularly beneficial for older people who may forestall a certain degree of impending dependency and take early measures to legally protect themselves without divesting themselves of their autonomy. Requests for guardianship are made to a Guardianship Board that will meet away from the Law Courts in a more informal setting. The Board is obliged to interview the person for whom guardianship is being sought, to appoint experts to review the requests and to ultimately adopt the least restrictive solution possible.
The Guardianship Board was appointed by the President on 15 July. It is a slim, three-person body, chaired by a retired member of the judiciary and one member each, appointed after consultation with the Kummissjoni Nazzjonali Persuni b’Diżabilita’ and the Commissioner for Mental Health respectively, and will be assisted by a Registrar. In carrying out its functions, the board has the power to summon any person to appear before it and to produce any documents required. The board is obliged to review Guardianship Orders at least every two years, although a request for revocation can be lodged with the Board during the two-year period. The courts have the mechanism to move to guardianship any person previously subjected to incapacitation or interdiction
Requesting the appointment of a guardian is a new way of improving protection. Whilst powers of attorney or letters of authorisation are limited in scope, guardianship imposes on the guardian a number of obligations at law which are significant for peace of mind. Apart from assisting or taking decisions linked to care and health matters the guardian, must for example, account for monies, property and assets administered on behalf of the vulnerable person and obtain approval for disposal of property.
In the three years of its life, the Office of the Commissioner for Mental Health and Older People has encountered multiple practical instances where guardianship will also be useful.
Those suffering from mental disorders retain the ability to make some decisions pertaining to health and civil life. But the mental illness itself, and prolonged periods of institutionalisation, has resulted in some people losing a substantial number of social and coping skills. This makes them vulnerable in the absence of protective social networks. Guardianship is a valid alternative to leaving such people unprotected or subjecting them to incapacitation or interdiction.
Social security and social assistance legislation allows vulnerable people to appoint administrators to receive and administer social benefits in cash on their behalf. In the overwhelming majority of cases, thousands of vulnerable people continue to receive the full and unconditional support of their administrators, who provide them with all their requirements. For those few cases where vulnerable people are abandoned in their home or in institutions by their own appointed administrator, the Social Security Department usually stops payments to curtail the abuse of misdirected benefits, pending further investigation. By opting for guardianship, vulnerable people can continue to receive benefits through a guardian appointed for such a purpose.
Older people sometimes do not accept that they cannot continue to function independently, although they have a significant physical illness. Failure to appreciate the risks linked to frailty does not really amount to mental disorder and guardianship can provide the necessary checks and balances for caring members of a family to take justified and perfectly legal decisions on behalf of their elderly relatives without depriving them of their full civil rights.
The challenges posed by the growing burden of dementia and altered mental capacity within the ageing process necessitate a meaningful response to the thorny question of protecting older people from abuse of their money, belongings and property. Although family ties remain substantial, and care and support structures are mushrooming in the public, voluntary and private sectors, loneliness and social isolation are steadily and stealthily creeping into our societal fabric. Living safely in a protected community environment requires the courage of realising that one needs help and assistance, and then asking for such assistance.
We encourage all those working with and on behalf of vulnerable people in the fields of mental disorder, disability and old age to familiarise themselves with guardianship legislation and to use it wisely.
Dr John M Cachia is the Commissioner for Mental Health and Older Persons, and Dr Miriam Camilleri is the Consultant in Public Health Medicine within the Office of the Commissioner