MAURITIUS Law and Practice Contributed by: Johanne Hague, Ashwin Mudhoo, Medina Torabally and Yushrah Bayjou, CMS Prism – in association with CMS
ported by documentary evidence in the form of medi - cal examination reports. In order to decide whether the person should be represented by a guardian, a very detailed account of the person’s health is called for and not simply the opinion of the doctor. The appli - cation is then referred to the Ministère Public for its views. In the same way, the Ministère Public will investigate and provide the court with its opinion and any docu - ment received during the course of the investigation. Pursuant to Article 496 of the Code, the Judge in Chambers is empowered, depending on the circum - stances of the case, to order that the person be exam - ined by a specialist medical practitioner. The Commis - sioner of Probation and Aftercare Service may also be ordered to submit a social enquiry report on the same person. After receiving all the documents, the Court will give its verdict. Application for Appointment of Guardians for Minors The application for guardianship of a minor is different from the guardianship of an adult. In the former case, guardianship and parental authority are closely linked but mutually exclusive. Articles 373-1 and 373-3 of the Code provide that in the event of the demise of one parent, the other parent has the sole and exclusive exercise of parental authority, and that there is need for guardianship where both parents are no longer alive or where the exercise of parental authority of both parents has been removed by the court. Similarly, in the case of a natural child, Article 374 of the Code provides that parental authority is exercised only by a parent who has acknowledged the child as theirs and by both parents if the child is acknowledged by both the mother and father. Therefore, guardianship in respect of a minor, whether legitimate or natural, is to be pronounced only where both parents are deceased or there is no parent who can exercise parental authority as per Article 395 of the Code. Therefore, an application for guardianship in respect of a minor is seldom pronounced if the child has at least one parent who is alive and can exer - cise parental authority. It is only in some limited cases
and in exceptional circumstances that such a drastic measure is taken. 8.3 Planning for Incapacity Mauritian law does not currently provide for a compre - hensive statutory regime of enduring or lasting powers of attorney comparable to those available in certain common law jurisdictions. Powers of Attorney Individuals commonly use general or special pow - ers of attorney to authorise another person to act on their behalf for specific purposes, such as managing bank accounts, operating businesses or dealing with immovable property. However, a power of attorney is generally unsuitable as a long-term incapacity planning tool because its effectiveness may be affected where the principal becomes legally incapable. Guardianship and Judicial Protection The principal mechanism for dealing with mental incapacity is the appointment of a guardian under the Mauritian Civil Code. Applications are usually made before the Judge in Chambers and supported by sworn affidavit attest - ing to the existing arrangements made to cater for the upkeep of the person subject matter of the application and medical evidence demonstrating that said person is incapable of managing their affairs. The court may request additional independent medical evaluations and social enquiry reports before determining whether a guardian should be appointed. Once appointed, the guardian is authorised to act on behalf of the protect - ed person in accordance with the scope established In practice, incapacity planning is often undertaken through a combination of succession planning meas - ures, including Wills, trusts, foundations and family governance arrangements, together with the possi - bility of subsequent court-appointed guardianship if incapacity arises. by the court. Practical Use
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