By Dr. Nicole Vassallo – Junior Associate
‘Interdiction’ and ‘incapacitation’ are regulated by Article 189 of the Civil Code and Articles 520-527 of the Code of Organisation and Civil Procedure (COCP). A person over the age of eighteen years with a mental disorder or other condition which renders him incapable of managing his own affairs, or is insane or prodigal, may be declared interdicted or incapacitated by a Court order following a demand to that effect requested by any of the persons listed in Article 521 of the COCP, effectively prohibiting the person concerned from performing certain acts.
A “mental disorder” for the purpose of these provisions shall have the same meaning assigned to it in the Mental Health Act, where it is defined as “a significant mental or behavioural dysfunction, exhibited by signs and/or symptoms indicating a disruption of mental functioning, including disturbance in one or more of the areas of thought, mood, volition, perception, cognition, orientation or memory which are present to such a degree as to be considered pathological in accordance with internationally accepted medical and diagnostic standards.” The phrase “other condition” in the present context is defined in the Civil Code as a “long-term physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder one’s full and effective participation in society on an equal basis with others.”
What is the difference between interdiction and incapacitation?
Upon reading Article 189 of the Civil Code, one immediately identifies the absence of a clear-cut distinction between the notions of interdiction and incapacitation, so much so that Article 189 of the Civil Code deals with the two notions in a concurrent fashion, as can be seen below:
- (1) A major who is a person with a mental disorder or other condition, which renders him incapable of managing his own affairs, or who is insane or prodigal, may be interdicted or incapacitated from doing certain acts, as provided in articles 520 to 527 inclusive, of the Code of Organization and Civil Procedure.
Generally speaking, where a demand for interdiction is not adequately substantiated by the person making the demand, the Court may order the incapacitation of the person concerned, if the circumstances give rise to incapacitation. The notion of incapacitation is found in Article 524(1) of the Code of Organisation and Civil Procedure, which reads as follows:
- (1) If no sufficient cause for the interdiction is made to appear, it shall be lawful for the court by a decree to order, if the circumstances of the case so require, that the person whose interdiction is demanded be incapacitated from suing or being sued, from effecting any compromise, borrowing any money, receiving any capital, giving a discharge, transferring or hypothecating his property, or performing any act other than an act of mere administration, without the aid of a curator to be appointed in the same decree.
It may be concluded from the above provisions that the difference between interdiction and incapacitation is one relative to the general extent of incapacity, which conclusion is further corroborated by sub-article (2) of Article 524 cited above.
(2) It shall also be lawful for the court, if it deems it necessary, to incapacitate any person from performing all or any of the acts of mere administration, entrusting the performance thereof to a curator in such manner as the court may deem fit to direct.
The above implies that even the notion of incapacity is subject to different decrees, so much so that incapacitation may be extended or limited, at the Court’s discretion, depending on the circumstances.
In these situations, the Court shall appoint a curator to administer the property of the person interdicted for a maximum term of three years. Said appointment can be renewed, if the court considers it appropriate, after evaluating the yearly sworn reports submitted by the curator.
The difference between interdiction and incapacitation, in fact, also emerges in the duties of their respective curators. For instance, while the curator of an interdicted person administers the patrimony of the interdicted person in its entirety, the curator of an incapacitated person merely assists the incapacitated person in the administration of his assets. Throughout the period of incapacitation, therefore, an incapacitated person retains control of his assets, contrary to a person interdicted.
A demand for interdiction or incapacitation as stated above shall take the form of an application to be filed in the registry of the Court of Voluntary Jurisdiction. It must contain a statement of the facts on which the demand is based and a list of witnesses that are able to confirm those facts. Any documents supporting the demand must also be enclosed with the application.
In terms of Article 251 of the COCP, the demand may be made (1) by a spouse against the other spouse, (2) by any person against another person related to him by consanguinity and (3) by any person against another related to him by affinity and who may be called upon to supply maintenance to such other person. The interdiction or incapacitation of any person incapable of managing his own affairs owing to a mental disorder or other condition may also be demanded by the State Advocate, unless the demand has already been put forward by any other person as stated above.
Interdiction or incapacitation is to take effect from the day of the relative decree of the Court of Voluntary Jurisdiction, and as a result, any act performed by the person interdicted or incapacitated following said decree shall be null. While any act performed prior to the interdiction or incapacitation is not automatically null, it may be annulled, if the cause of interdiction or incapacitation existed at the time of the said act.