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15 February 2018
The Capacity and Self-Determination (Jersey) Law 2016, due to come into effect in April 2018, will be a long overdue update to the old customary laws.
This new law will give people the opportunity, while they still have capacity, to make decisions regarding their financial and personal affairs and welfare which will take effect should they lose capacity.
At present, Jersey law does not allow for a person to put in place the equivalent of an English lasting power of attorney. Although a power of attorney can be drafted and signed, giving your attorney the ability to do certain things on your behalf, this power of attorney is immediately invalidated should you lose your mental capacity. Therefore, there is no way for a person to appoint – while they have capacity – someone to look after their affairs when they do not.
The new law will enable anyone over the age of 18 with mental capacity to put in place two different types of lasting power of attorney. One will deal with health and welfare matters (eg, medical treatment and wishes in relation to life sustaining treatment) and the other will cover property and financial affairs, enabling the person to name someone to assist with the management of their assets.
The concept of légitime, which is Jersey's forced heirship regime, might be reviewed in detail once more.
Under the existing Jersey succession laws, only a spouse or a child of a deceased person can make a claim against the deceased's will covering their movable estate if the will does not make sufficient provision for them as determined by the law. Removing this concept of forced heirship would bring Jersey in line with both England and Guernsey – the latter replaced their forced heirship regime with a system of full testamentary freedom in 2011.
This may also pave the way for relatives other than spouses or children to be able to make a claim against a person's will should the need arise. While this might increase litigation around the distribution of a person's estate – thereby eating into the estate assets – it would also offer more flexibility and would be more in keeping with the diversity of family set-ups today. Jersey succession law makes no provision for a common-law spouse or for dependent parents, which – with Jersey's ageing population and the prevalence of two-generation households – are now more common than ever.
There are likely to be amendments to the Wills and Succession (Jersey) Law 1993, which was the subject of an independent report by Professor Meryl Thomas in 2015. The report surrounded the issue that prevents people who cannot write due to a physical disability from making a valid will; the existing law requires you to sign or make your mark on a will in order for it to be binding under Jersey law. This report followed the decision in the local case of a man who was deemed to have died intestate because he was unable to sign his will, which the report stated was in breach of the European Convention of Human Rights. The man had drawn up a will in accordance with his wishes but was unable to physically sign it – however, he had instructed an independent person to sign on his behalf. There is law in both Guernsey and England which allows this, but nothing similar in Jersey.
Another area in need of review is the historical requirement that a will of Jersey Immovable Property be read out loud to the person making the will by a qualified person before it is signed. This customary law requirement was introduced at a time when illiteracy was more common in Jersey, and is much less relevant today.
Some are keen to see Jersey's succession law brought more in line with that of other jurisdictions, such as Guernsey and England – and the above suggests that steps are being taken in this direction.
Many would also welcome a more flexible approach to how maternity and paternity leave are taken and offered by employers. New legislation was introduced in the United Kingdom in 2015 which allows parents to take up to 50 weeks' paid leave between them following the first two weeks after birth. A similar system is being considered in Jersey.
An earlier version of this article was first published in Business Life Global.
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