Protection Of Adults In Situations Of Vulnerability | Part 3: From Guardianship To Personal Autonomy

Introduction

This is the final instalment of our three-part series examining Malta’s 2026 reforms relating to the protection of adults in situations of vulnerability and the promotion of personal autonomy. In Part 1, we introduced the Protection of Adults in Situations of Vulnerability Act (Chapter 659 of the Laws of Malta), outlining its objectives, guiding principles and institutional framework. Part 2 examined how that framework operates in practice, from the reporting and investigation of concerns through to the implementation and review of protective measures.

This article turns to the companion legislation, the Various Laws (Personal Autonomy) (Amendment) Act, 2026 (Act XIII of 2026) amends existing legislation to replace Malta’s previous guardianship framework with a system centred on personal autonomy safeguards and the appointment of support persons.

From Guardianship to Personal Autonomy

The Various Laws (Personal Autonomy) (Amendment) Act, 2026 (“the Act”) introduces a new terminology and structure for matters previously dealt with under the guardianship framework. Among other changes, the Act replaces references to “guardianship” in the Code of Organization and Civil Procedure with references to “personal autonomy safeguards” and replaces references to a “guardian” with those of a “support person”.

The Act also amends the Civil Code insofar as personal autonomy safeguards are concerned. The Civil Code, as amended, provides that the personal autonomy safeguards framework is to be applied in a manner that respects the person’s well-being, rights, will and preferences, guarantees the effective exercise of rights, ensures that any safeguards are proportionate and adapted to the person’s circumstances, and avoids undue influence.

The remaining provisions of the Act establish the institutional and procedural mechanisms through which these principles are implemented, including the Personal Autonomy Safeguards Board, Personal Autonomy Safeguard Orders and the appointment of support persons.

The Personal Autonomy Safeguards Board

As part of the reform of the guardianship framework, the Act replaces the former Guardianship Board with the Personal Autonomy Safeguards Board (“Board”), the body responsible for administering the personal autonomy safeguards framework under the amended Code of Organization and Civil Procedure.

Article 519A of the Code of Organization and Civil Procedure provides that the Board is composed of not more than six members. The President of the Board must be an advocate or a person who has acted as a judge or magistrate and who is knowledgeable, experienced or trained in the area of the rights of persons with disability. The remaining members are appointed following consultation with the Commission for the Rights of Persons with Disability, the Commissioner for the Promotion of Rights of Persons with Mental Disorder, the Commissioner for Older Persons and the Chief Executive Officer of the Victim Support Agency. The Act also provides for the appointment of an additional member who is a health and social care professional possessing the qualifications specified in the legislation.

The amendments further introduce provisions regulating the Board’s operation, including the appointment of substitute members, the qualifications and disqualifications applicable to members, the appointment of a Registrar and Administrative Secretary, the provision of premises and staff, and other matters relating to the Board’s administration.

Subsequent provisions of the amended Code of Organization and Civil Procedure confer on the Personal Autonomy Safeguards Board a number of functions under the personal autonomy safeguards framework, including those relating to support persons and Personal Autonomy Safeguard Orders, discussed below.

Personal Autonomy Safeguard Orders

Where the Board finds that there is just cause for the appointment of a support person, it shall make such appointment through the issuance of a Personal Autonomy Safeguard Order. Article 519F of the Code of Organization and Civil Procedure further provides that the Order specifies the functions, obligations and duties to be exercised by the support person in accordance with the amended provisions of the Code of Organization and Civil Procedure and the Civil Code.

Preferences to be given to a support person proposed or agreed to by the person being accorded personal autonomy safeguards, provided that the proposed individual satisfies the statutory eligibility requirements set out in Article 519G of the Code of Organization and Civil Procedure. Where the person being accorded personal autonomy safeguards disagrees with the Board’s decision regarding the appointment of a support person, the legislation provides a right of appeal.

Article 519F also requires the Board, when appointing a support person, to provide for the review of the Personal Autonomy Safeguard Order within a specified period not exceeding two years. The Board may also review an Order of its own motion or upon application.

The amended legislation further provides for the substitution of a support person where the statutory requirements are no longer satisfied and for the revocation of a Personal Autonomy Safeguard Order in the circumstances established by law.

The Role of Support Persons

Article 519G of the Code of Organization and Civil Procedure provides that a support person must have attained the age of eighteen years, be ordinarily resident in Malta and consent to act in that capacity. The Board must also be satisfied that the individual is capable of performing the functions, obligations and duties assigned to support persons and will act according to the rights, will and preferences of the person being accorded personal autonomy safeguards.

Support persons mist makes real and pertinent efforts to obtain an expression of the person’s will and ascertain the person’s preferences, having first provided the relevant accessibility measures and reasonable accommodation. Where it remains impossible to obtain such an expression of will or ascertain those preferences, the support person must make the best interpretation of the person’s will and preferences, considering the person’s previous statements, values, beliefs and life history.

Anticipatory Mandates

The Act also amends Article 1864A of the Civil Code to revise the framework governing anticipatory mandates. These provisions allow a person of full age to make a mandate in anticipation of the future impairment or insufficiency of their personal faculties, identifying a mandatary who may support or represent them in relation to matters concerning the protection of their person and rights, or the administration of their property, should the conditions specified in the mandate arise.

The amended provisions regulate the creation and operation of anticipatory mandates. A mandate must be executed by notarial act in the presence of two witnesses and registered in accordance with the requirements of the Civil Code and the Notarial Profession and Notarial Archives Act. It only becomes operative after the conditions specified in the mandate have been confirmed by one or more health and social care professionals and approved by the Court of Voluntary Jurisdiction, which must first give the mandator an opportunity to be heard, following an application by the designated mandatary.

Termination of mandates must likewise be effected by notarial act, supported by the necessary professional certifications confirming that the relevant conditions no longer subsist, approved by the Court of Voluntary Jurisdiction and registered accordingly.

Financial Administration and Oversight

Where a Personal Autonomy Safeguard Order authorises a support person to support in the administration of monies or other property, Article 519H of the Code of Organization and Civil Procedure imposes a number of specific duties. A support person must, within two months of appointment, submit to the Board a list of the person’s assets and liabilities as at the date of issue of the Personal Autonomy Safeguard Order. The support person must also keep separate payment accounts and records, including income and expenditure accounts, in relation to those monies or other property.

The support person must also obtain the Board’s prior approval in respect of any transfer of, or imposition of a burden upon, property belonging to the person accorded personal autonomy safeguards where the Personal Autonomy Safeguard Order envisages such a role.

Annual income and expenditure accounts confirmed on oath must also be submitted to the Board.

Interaction with the Protection of Adults in Situations of Vulnerability Act

The Act links the personal autonomy safeguards framework with Chapter 659. Article 22 of Chapter 659 provides that, where the Director for the Protection of Adults in Situations of Vulnerability (“Director”) has reasonable grounds to believe that an adult is or may be in need of assistance or protection and is unable to make reasonable judgements with respect to the adult’s personal welfare or estate, the Director may apply to the Personal Autonomy Safeguards Board in accordance with the Civil Code. Article 22 further provides that, where there is a considerable risk of immediate, serious harm to the adult or the adult’s estate, the Director may apply for the appointment of a temporary support person while an investigation is ongoing or other action is being taken under Chapter 659.

Article 21 of Chapter 659 further provides that, where the Court of Magistrates orders that an adult be subject to the supervision of the Director by means of a Protective Intervention Order, the Director’s involvement in treatment decisions is, unless otherwise specified in the Order, subject to the same obligations and powers assigned to a support person under the Civil Code.

Transitional Provisions

The Act also introduces transitional provisions governing the continued operation of existing Guardianship Orders, decrees of interdiction and incapacitation, and pending proceedings following the coming into force of the amendments.

Existing Guardianship Orders remain in force for the remainder of their current duration. Where renewal of such an Order is sought and granted, it is converted into a Personal Autonomy Safeguard Order. Similarly, pending applications for Guardianship Orders continue to be determined under the previous provisions.

Existing decrees of interdiction and incapacitation similarly continue in effect until their expiry, after which they may be converted into Personal Autonomy Safeguard Orders upon renewal.

Broader Legislative Amendments

In addition to amending the Code of Organization and Civil Procedure and the Civil Code, the Act also introduces amendments to a number of other enactments. These include amendments to the Marriage Act, the Equal Opportunities (Persons with Disability) Act and the Mental Health Act.

The amendments to the Marriage Act introduce provisions enabling the Director to advise where a vulnerable adult could suffer significant harm as a consequence of a proposed marriage, without restricting that person’s legal capacity to marry.

The Equal Opportunities (Persons with Disability) Act is amended to confer additional functions on the Commissioner for the Rights of Persons with Disability in relation to the operation of the new framework, including the monitoring of Personal Autonomy Safeguard Orders and the review of the operation of the framework in accordance with the amended legislation.

The Mental Health Act is amended to incorporate the new terminology and reflect the personal autonomy safeguards framework introduced by the Act.

Conclusion

The Act complements Chapter 659 by introducing a revised system of personal autonomy safeguards through amendments to the Code of Organization and Civil Procedure, the Civil Code and a number of related enactments. In doing so, it replaces the previous guardianship framework with mechanisms centred on support persons and Personal Autonomy Safeguard Orders, while providing that the personal autonomy safeguards framework is to be applied in a manner that respects the person’s rights, will and preferences and ensures that any safeguards are proportionate and adapted to the person’s circumstances.

Read together, Chapter 659 and Act XIII of 2026 establish complementary legal frameworks addressing different aspects of protection and support for adults who may require assistance. While Chapter 659 provides the statutory framework for safeguarding adults in situations of vulnerability, the Act introduces mechanisms through which individuals may exercise their legal capacity with support where required. As implementation of the reform package continues, practitioners and organisations operating within the health, social care and legal sectors will need to consider how these two frameworks operate both independently and, where the legislation so provides, in conjunction with one another.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.