The implementation of the Capacity and Self Determination Law (2016) has allowed the use of Lasting Powers of Attorney ('LPA'), which previously were not recognised in Jersey. This welcome change in the law now offers Jersey-domiciled residents the opportunity to make provisions for their future and put in place steps to cover the possibility of them becoming incapable of managing their own personal affairs during their lifetime.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows an individual (known as the “Donor”) to appoint another person (known as the ‘Attorney’) to help manage and make decisions on their behalf. This is becoming increasingly more important as it is now widely understood that the risk of mental incapacity issues has increased with the population’s longer life expectancy and vulnerability to illness and accidents.
Do you need an LPA?
The risk of mental incapacity issues has increased with the population’s longer life expectancy and vulnerability to illness and accidents.
Many of us will at some time require assistance with our financial and property matters or with our health and welfare. By executing an LPA you have the power to choose who will provide this assistance. You can also give instructions, or set out preferences, on what should happen to you and your property if you lose the ability to make such decisions yourself.
An LPA is a legal document that allows an individual, known as the “Donor”, to appoint another person (or persons), known as the “Attorney(s)” to help manage and make decisions on their behalf.
There are two types of LPAs available. The first deals with property and affairs. The second deals with health and welfare.
Property and affairs
An LPA relating to property and affairs can be created to give your Attorney the power to deal with your affairs as soon as it is registered, or if you prefer, only after you are unable to manage your finances yourself because you have lost mental capacity.
Your Attorney will have powers to (among other things):
Deal with tax affairs
Enter into contracts
Manage your financial affairs generally
Health and welfare
An LPA which relates to health and welfare can only be used if you are unable to make a decision yourself and you have lost mental capacity.
A health and welfare LPA can deal with;
Medical treatment to be received or refused
Where you should live
With whom you should maintain contact.
A health and welfare LPA allows your attorney (with your specific consent) to make decisions in relation to life sustaining treatment. If you are content for your attorney to do this, you can leave them instructions. Alternatively, if you have strong views, we recommend that you look into creating an ‘Advanced Decision To Refuse Medical Treatment’ (“ADRT”). If you do execute an ADRT, doctors and physicians will look at this form as instructions coming directly from you. This is different to a health and welfare LPA where your Attorney will be making decisions for you (decisions which you may or may not have made yourself).
It is possible to limit your attorney’s powers and set preferences and give instructions.
Who should you consider appointing?
It is possible to appoint one Attorney to act on their own. It is also possible to appoint multiple Attorneys either to act together or individually (known as jointly and severally), or to have one Attorney make a few specific decisions and another Attorney to make others. Please see below for further information.
Many couples will choose to appoint each other as the Attorney in the first instance, referring to other close family members to act if the spouse, partner or civil partner becomes unable. Careful thought should be given as to who should be appointed. Under the law, an Attorney must be over the age of 18, and with regards to a property and affairs LPA, they may not have been subject to bankruptcy or insolvency proceedings on a previous occasion.
What are the Attorney’s powers?
An Attorney’s power can be limited by you when the application form for an LPA is completed. Limiting an Attorney’s powers should be considered carefully, as an Attorney may require wide powers in order to act in your best interests. For example, limiting their ability to deal with transactions of £50 or less is not going to be practical as there will inevitably be times where an Attorney needs to pay bills totalling a higher amount.
When multiple Attorneys are appointed, you must consider how they are to exercise their powers.
If appointed jointly, all Attorneys must make all decisions together. Consensus must be reached for a decision to be made.
If one of the multiple Attorneys dies or becomes unable to act, the LPA will cease to be effective and an alternate Attorney (if appointed) will take up the position. If there is no alternate Attorney, the LPA will become invalid.
The Attorneys will be able to make decisions alone, or together. A decision made by one Attorney will be just as much as a decision made by all attorney’s appointed.
Trying to list every decision that needs to be made and assigning it to an Attorney will, inevitably, lead to problems. There will always be decisions that need to be made that have not been contemplated. Choosing a few decisions to be made by specific people may however, be a good way of ensuring that decisions you feel strongly about are reserved for people who are closest to you. For example, you may appoint your spouse/partner or civil partner and a sibling to act together, with your spouse/partner or civil partner having the power, alone, to determine where you live.
Who should make an LPA?
It is impossible to predict what state of health we will find ourselves in at any time in the future, and whether we will suffer an accident or illness which depletes our ability to look after ourselves. Accordingly, we advise that everyone should make an LPA.
Anyone who has been diagnosed with a potentially life-changing illness or condition should consider the execution of an LPA as a priority before they lose the capacity to do so.
What if an LPA has not been made and someone loses capacity?
Having capacity to understand the nature and effect of LPAs is an element necessary in order to execute an LPA. If this opportunity is missed and you lose capacity before executing an LPA, the court will appoint a Delegate to act on your behalf. The decision of who to appoint lies with the court and this may not be the person you would have appointed as your Attorney. The court will decide what powers the Delegate is to have.
How do I make an LPA?
If you are over 18 and have the requisite mental capacity, you can make a LPA by completing an application form. The form is then sent to the Judicial Greffe to be registered, and a £25 is payable at the time of registration. The fee is reduced if you are in receipt of income support, long-term incapacity allowance, long-term care.
After a statutory waiting period of 14 days, the form will be registered and, if you have given your Attorney(s) powers to begin acting straight away, they will be able to do so.
Viberts caters for all individuals who wish to put in place an LPA. From witnessing pre-completed forms, to completing the forms on your behalf. Contact our Personal Law team today for more information: +44 (0)1534 632205.