On 1 October 2018, the Capacity and Self-Determination (Jersey) Law 2016 and the Mental Health (Jersey) Law 2016 Law will come into force in Jersey and will be relevant for those who are 16 years old and over. For this briefing, we will look at Lasting Powers of Attorney under the Capacity and Self-Determination Law (the “Law”).
Fundamentally, the Law is all about an individual’s ability to make their own decisions so long as they have capacity to do so and it also provides a single test designed to assess whether or not an individual has the requisite capacity to make decisions for themselves. The test for capacity is that ‘a person is unable to make the particular decision at the time it needs to be made; because they have an impairment of the mind or brain or some other disturbance in the way their mind or brain works that is affecting the decision-making’.
Lasting Powers of Attorney (“LPAs”)
There are two types of LPAs that may be relevant for anyone over the age of 18; Health and Welfare LPAs and Property and Affairs LPAs. Health and Welfare LPAs focus on decisions such as those about one’s daily routine and medical care. This type of LPA only applies when an individual lacks the capacity to make a decision by themselves. Of course, ones’ lack of capacity could only be temporary rather than long-term so an Attorney’s ability to act under such an LPA may vary from time to time. The Property and Affairs LPA relates to an individual’s activities and decision making that would not fall within the remit of a Health and Welfare LPA. By way of example, it would allow the Attorney to deal with the donor’s assets so that they could pay their bills, deal with their banking or selling their assets.
It should be noted that an attorney cannot give up their role without first notifying the person concerned and the Judicial Greffe.
Requirements and process
Attorneys for Health and Welfare or Property and Affairs must be an individual over the age of 18 and pass the aforementioned capacity test.
An Attorney for Property and Affairs can be either an individual (in which case they must be over the age of 18 and pass the aforementioned capacity test) or a trust company or law firm and must also meet certain financial criteria.
The LPAs must be witnessed by a professional and registered with the Judicial Greffe so that they become statutory instruments. The same Attorneys can, if one wishes, be used for both types of LPA.
LPAs can be updated, amended or cancelled by the individual at any time so long as they have capacity to do so. It should also be noted that the Court can decide on any questions of validity or unclear meaning and can also remove any Attorneys that it deems to be unfit.
These LPAs will only apply from 1 October 2018 and they will not have retrospective effect.
There will be online forms to complete the LPA’s which will cost £25 per LPA. They should be completed online, printed and signed and then manually verified by the Judicial Greffe’s office. The LPA is ‘issued’ once the verification or notification period is complete.
Curators and Delegates
A curator is a person who is appointed by the Court to manage and carry out the affairs of another who, in the opinion of the Court, is incapable of doing so. The Mental Health (Jersey) Law 2016 (the “Law”) repeals the Mental Health (Jersey) Law 1969 and provides a new framework for the treatment of people with mental disorders. This Law is more closely aligned with contemporary legislation of other jurisdictions and as such it helps to modernise Jersey’s Mental Health Law.
From 1st October 2018, delegates will replace the role of curators. This is considered necessary as the role of the curator is limited in the fact that it only extends to the financial management of an individual’s affairs. A curator does not have legal authority to deal with an individual’s personal issues, such as arranging care for an individual.
The role of the delegate will immediately apply after the adoption of this new Law to all existing curatorships and as such if an individual loses capacity before making an LPA, the Court can make decisions on behalf of the individual or appoint somebody as a delegate.
It is hoped that the new Law will be fundamental in helping those who don’t have family or need the support, as delegates will be able to assist individuals with regards to their financial management and personal issues.
Please contact Roisin Hocking for more information.