Lasting Power of Attorney
Lasting Powers of Attorney will be possible in Jersey law within the coming months.
The Capacity and Self-Determination (Jersey) Law 2016 was adopted by the States on the 14th September 2016 and registered by the Royal Court on the 23rd December 2016. It is expected to come into force this coming April. The draft legislation, together with the new draft Mental Health (Jersey) Law is the culmination of many years work by stakeholders.
The resulting legislation is significant and modern, encapsulating the best practices as laid down by the European Court of Human Rights and drawing on the practical experiences in the mainland as to its implementation.
The Capacity and Self-Determination (Jersey) Law 2016 enables everyone over 18 in Jersey, for the first time, to plan for a future where they may not be able to make decisions for themselves due to a lack of capacity. This may be achieved by a Lasting Power of Attorney (“LPA”) for health and welfare matters or property and affairs matters, or both.
A striking feature of the new law is the presumption that everyone in Jersey over 16 has the capacity to make decisions for themselves. Lack of capacity is not based simply upon a medical condition, whether temporary or permanent, but rather a person’s ability to make a specific decision about a specific matter. It is now clear because of the statute that people don’t just lack capacity; one can have capacity for one decision and lack capacity at the same time for another decision. The law also provides that a person is not deemed to be unable to make a decision unless all reasonably practical steps have been taken to enable a person to make the decision themselves. Also, that where a lack of capacity does exist, any decision taken on their behalf must be in their best interests. Again, determining what they are involves all reasonable practical steps being taken to ascertain their past or present wishes and feelings about the particular decision to be made.
At present, Jersey law allows an LPA or an Enduring Power of Attorney made in the UK by a non-Jersey resident, to be followed in respect of Jersey assets provided it is registered by the Royal Court.
The most that a Jersey resident can achieve is to give someone a Power of Attorney; the authority and power to deal with their affairs as their attorney, although such a power has to be registered by the Royal Court for prescribed matters such as dealing with immovable property. However, any such power will cease once the person granting it loses capacity. In addition, attorney’s often experience practical difficulties when acting as attorney, for example, when some institutions such as banks, refuse to recognise the Power of Attorney.
The Capacity and Self-Determination (Jersey) Law 2016 at last addresses this imbalance between UK and Jersey residents for Jersey assets, where capacity is lost, and also enables those granting a power of attorney to ensure continuity for their chosen attorney.
The law also enables everyone over 16 in Jersey to make advance decisions to refuse or consent to medical treatment (ADRTs). Whilst ADRTs are not themselves new to Jersey, it is the first time that their effect and form are included in a statute.
The new law will also repeal and replace the customary law of curatorships. A curator is someone appointed by the Royal Court to manage the property and financial affairs of someone (an interdict) who is unable to do so because of mental disorder. The existing procedure can be restrictive as it only applies to property and affairs, as well as administratively burdensome, which can increase expense.
Curators will be replaced by Delegates, who, once appointed by the Royal Court, will be able to make decisions regarding health ands welfare, as well as property and financial affairs, for those who lack capacity where an LPA has not been made.
The law sets out various matters, which must be included for an LPA to be valid and also that the LPA must be registered by the Royal Court to be valid. Subordinate legislation will be made to set out the necessary forms to be completed to make an LPA, as well as register an LPA. The forms used in the mainland are rather lengthy and complex, which often discourages people from having an LPA.
Jersey has been able to take notice of this issue, and, in keeping with the aim of the law to be as clear and accessible as possible, will produce a form which is more straightforward and shorter than those used in the mainland, whilst balancing the need to protect against the misuse of LPAs.
Should you wish to know more about the Capacity and Self-Determination (Jersey) Law 2016 and how it can help you plan and keep control of your own future, please contact Michelle for an informal discussion.