The government promises some more upside-down thinking

Daphne Caruana Galizia Sunday, 13 September 2015, 11:00 Last update: about 12 years ago

Justyne Caruana, the parliamentary secretary for the elderly, has caused a bit of a storm by saying – out of the blue – that a new law (for which there has been no white paper or evidence of consultation) will allow the government to over-ride a person’s last will and testament and seize his estate from his designated heirs. The circumstances which will allow the government to do this, under the law Mrs Caruana has envisaged, are when those heirs have neglected to take care of their old parent, whose last will and testament it is.

Only a political party or government with no natural understanding of fundamental rights and liberties could have come up with something like this. A citizen’s last will and testament is sacrosanct. Nobody – certainly not the government – can intervene to over-ride, undo or contradict it. Yes, a will can be challenged, but only by the heirs or those who assume a claim to inheritance, and then there are very specific parameters in which it can be done, all regulated by law and which have to be ruled upon by the Courts of Justice. You will have to prove, for example, that the person was not of sound mind when he made his will, that he was coerced or threatened into making it, and even then it is extremely difficult.

I see from the flood of comments beneath the news report about this matter, yesterday, that lots of people seem not to understand the fundamental principles at stake here, the risks and dangers, and the presumptions and assumptions inherent in Mrs Caruana’s reasoning. Like Mrs Caruana and the government of which she forms part, these people think only in terms of rough justice and the law of the jungle. Somebody neglects his parents? Mela don’t let him inherit anything from them, even if his parents wish him to inherit their estate and say so in their will.

Yet reading that news report, the first thing I wanted to know – because it wasn’t touched upon at all – was whether the government plans to introduce this measure to punish sons and daughters for their neglect of their parents, or whether it wishes to seize the estate – in violation of the will which was drawn up by a notary and witnessed - so as to make good for state expenditure on the care of the neglected parent.

In neither case does it make any sense at all. If the government believes that parliament should legislate against the neglect of elderly people by their sons and daughters, then the only reasonable way to do it is to make this sort of neglect a crime – neglect, that is, as distinct from abuse which is a crime already. But there, too, you are going to run into difficulties. Not all elderly parents are delightfully cooperative in making things easier for them and for those who are constrained to look after them. In fact, most are not. At every social gathering of people in their late 40s and 50s, you will find many who are beleaguered by the problems of ageing parents, when they have had but a marginal breathing-space between that and raising their children. With people living so much longer, aged parents are now the single biggest problem middle-aged people have to contend with after they have already dealt with the myriad problems of bringing up their own children and even as they are concerned with the problems of those adult children’s own lives. These parents are not neglected in any way, but they present a major problem to their sons and daughters. I think Justyne Caruana will find that when old people are neglected by their children, there is generally a very good reason for it. It is almost always because those old people weren’t particularly nice to their children before the balance of power shifted into reverse.

If the government wishes to over-ride the old person’s will and seize his or her estate from the specified heirs so as to get back something of what it considers it is owed for that old person’s care, in the face of the heirs’ neglect to provide that care themselves, then this too is wrong. If the government feels it has a claim against the old person’s estate for monies owed to it for his care, then it should make that claim and seek payment when the old person is alive, and not over-rule his will after his death.

Justyne Caruana spoke about an old man who was left in filth and squalor, and how the government had to move in to make certain decisions on his behalf, meeting with obstacles put up by his children. She seemed to think this was something exceptional, and not just another function of the welfare state/social services that has been the norm in the more developed parts of Europe for decades now. One of the duties and obligations of the Social Services Department is to make sure that people – whatever their age, but especially the most vulnerable in terms of age – are not living in filth, and that they are getting the care and nourishment they need. The funds for rescuing them from this squalor should come from public money. That is what, among other things, public money is for – and not for putting Friends of the Government and the Party on the state payroll.

Yes, Mrs Caruana’s portfolio contains only elderly people and not children, but surely as she must understand that this particular knife cuts both ways. Very many children are severely neglected by their parents in Malta, lots of them to the extreme of being dumped into an institutionalised care home, run by a religious order, where they are looked after by priests, nuns and volunteers until they reach 16, following which they are abandoned to their own devices.

How does Mrs Caruana plan on punishing these parents for their neglect of children to whom – unlike to their own parents – they have a real and actual duty of care under the law and in biological and moral terms? Perhaps she thinks that there is no need to consider this, because aside from the fact that children are not her responsibility, it is religious orders and charities who have to pay the price of raising those children when their parents fail to do so – and not the government.

As always, there we go, putting the cart before the horse. In 2015, the provision for the care of neglected, abused and abandoned children in Malta is still roughly what it was in the Victorian age – religious institutions, priests, nuns and charities – but the government and Justyne Caruana think it absolutely essential to rewrite the laws on inheritance to punish neglectful sons and daughters and compensate the state for the care of their parents. I’ll go out on a limb here and say what others seem reluctant to acknowledge: that if those old people had been nicer to their children, if they had loved them and looked after them, then now they would be loved and looked after in return. If their children don’t give a damn about them now, then it’s almost certainly because they didn’t give a damn about their children then.