MALTA Law and Practice Contributed by: Rosanne Bonnici and Rebecca Diacono, Fenech & Fenech Advocates
8.3 Planning for Incapacity The Civil Code caters for the so-called “Lasting Power of Attorney”. The Lasting Power of Attorney enables a person to appoint a mandatary to manage their personal affairs and/or administer their property should they become incapable of managing them in the future. To be valid, the mandate must first be put into place when the mandator is of sound mind and by means of a notarial deed. Unlike an ordinary mandate, which would ordinarily terminate upon the incapacity of the mandator, a Last - ing Power of Attorney is specifically designed to sur - vive and operate upon such incapacity. The mandate becomes effective only when the incapacity arises and following approval by the Court of Voluntary Juris - diction, which may impose any conditions it considers appropriate. 8.4 Elder Law Around 18% of Malta’s population is aged 65 or over; this number has steadily increased over the last dec - ade or so, much in line with the rest of Western Europe. In the past few years, several fiscal incentives have been granted to incentivise individuals to plan for their future from a private pension perspective. The Personal Retirement Scheme Rules and the Voluntary Occupational Pension Scheme Rules contain said fis - cal incentives in the form of several tax deductions and tax credits. There is admittedly more to be done locally in the context of pensions, both public and private, to prepare the population for the future, from a financial perspective. 9. Planning for Non-Traditional Families 9.1 Children The Civil Code does not distinguish between children born in and out of wedlock, nor does it differentiate between adopted children and birth children. The Civil Code does provide that individuals who were not yet conceived at the time of the testator’s death are incapable of receiving by will. Accordingly, chil - dren born posthumously may not inherit.
Surrogate pregnancy arrangements are not recog - nised by Maltese law; accordingly, a surrogate preg - nancy contract may arguably be in breach of local public policy rules. As a result, there is no clarity on how the local authorities may be expected to act if faced with a case involving a child born to a surrogate, locally or overseas. From a succession perspective, it appears that such a child would not have the succes - sion rights that are granted to a child of the deceased under current law. 9.2 Same-Sex Marriage The Civil Unions Act was published in 2014 and intro - duced same-sex civil unions. Following the introduc - tion of the Civil Unions Act, other laws, including the ITA, were amended to accord same-sex partners in a civil union rights equivalent to those of spouses in a heterosexual marriage. The Marriage Act and Other Laws (Amendment) of 2017, supplemented by the Conversion of Civil Unions into Marriage Regulations, 2017 (Legal Notice 382 of 2017), amended various laws to eventually grant same-sex partners the right to effectively convert their civil union into a marriage. As spouses for all purposes of the law, same-sex spouses now enjoy equality of treatment with heterosexual spouses across a range of laws, including taxation. 9.3 Cohabitation and Unmarried Couples Tax From a tax perspective, unmarried couples who have opted to register as cohabitants under the Cohabita - tion Act are not treated as married couples for tax pur - poses and thus they cannot apply married tax rates, nor are they issued a joint tax return. Succession In terms of succession planning, a cohabitant is not considered a “spouse” and thus would have no right to any reserved portion which would be catered for in terms of the forced heirship rules in their partner dies with a will, nor would they have any rights, qua heir, if their partner were to die intestate. The Cohabitation Act does cater for a limited right of habitation over the cohabitation home where the said cohabitation home is held in full ownership or emphyteusis by the
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