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29 March 2018
The Capacity and Self-Determination (Jersey) Law 2016, which is now due to come into effect in October 2018, makes a welcome and overdue change to the old customary laws which govern this area of law in Jersey.
The new law will give people the opportunity, while they still have the capacity, to make their own decisions regarding their financial and personal affairs and welfare, and these decisions will take effect should they lose capacity. It provides a framework that will give people the opportunity to make their own decisions in respect of medical treatment insofar as possible, including advance decisions to refuse treatment.
At the moment, there is no mechanism in Jersey for a person to put in place the equivalent of an English lasting power of attorney (LPA). As things stand, a power of attorney can be drafted and signed, giving an attorney the ability to do certain things on his or her client's behalf, such as manage bank accounts and pay bills; however, as soon as an individual loses his or her mental capacity, this power of attorney is immediately invalidated. Therefore, there is no way in which a person, while they have capacity, can appoint someone to look after their affairs or their future care for when they no longer have capacity, whether permanently or temporarily.
The new law will change this and enable anyone who is over the age of 18 and who currently has mental capacity to put in place two different types of LPA, similar to the procedure that is followed in England:
The existing position for a person in Jersey who has lost their mental capacity is for a curator to be appointed by the court to manage their affairs. However, a curatorship offers only management of the financial aspects of the individual's life and the curator has no legal authority to make decisions in respect of care arrangements or other personal issues of that person. If the person has family members, such decisions usually fall to them; however, for people without family to assist, this task often falls to the curator on the basis that there is no one else to take such decisions. This can put the curator in a difficult position, especially if the curator is a professional who was not involved in the client's life until appointed to assist by the court and who therefore has little knowledge of his or her client's wishes in terms of his or her care, medical assistance, beliefs and values. The new law will address this gap in the existing law.
The new law also makes provision for the Jersey Royal Court to make certain appointments and decisions where a person does not take the opportunity to draw up an LPA during his or her lifetime but who then loses mental capacity. In such a case, the court can appoint a delegate to make health and welfare or finance and affairs decisions, which is contrary to the existing position.
Importantly, protection is offered by the new law not only to individuals potentially lacking capacity, but also to those who are entrusted with the decisions of the individual, provided that any decisions made are made in the best interests of the donor and in line with the authority given in the LPA. A number of judgments made by the European Court of Human Rights and the Supreme Court regarding human rights principles are reflected in the new law in this respect. The new law also allows the attorney to be reimbursed for any reasonable expenses when exercising his or her authority or functions under the LPA.
As with any new law that is introduced, there are bound to be some teething problems for practitioners practising in this area. As such, it is important that they are mindful of any possible risks and advise clients accordingly. The main risk involved with the introduction of the new law is that the powers given by a person under an LPA – in particular in respect of their property and financial affairs – could be abused. There are steps that could be taken to minimise this risk, such as:
It may also be recommended for the attorney to keep accurate accounts of the donor's assets.
Generally, the new law will:
It will bring about a change in this area of Jersey law which has been needed for some time.
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