Incapacity: Who will manage my affairs if I become incapable?
Have you thought about a curatorship?
Sadly most of us have either known someone affected by mental incapacity or will be touched by this issue in the future either in terms of an elderly relative or a friend, or indeed personally.
Whilst we all have the right to look after our own affairs, incapacitating illnesses such as Alzheimer’s, senile dementia or a stroke may decrease our ability to carry out day-to-day tasks which were previously second nature. Writing cheques, dealing with the mail or maintaining the home may become insurmountable tasks.
There may be a family member or friend who deals with a person’s finances either informally on the basis of a third party mandate on their bank account or more formally by way of a power of attorney. It is important to understand however that loss of mental capacity automatically revokes a power of attorney. Unfortunately, there is no equivalent in Jersey to the English concept of a Lasting Power of Attorney, which is a power of attorney that continues to be effective despite mental incapacity. Furthermore, there may come a point where financial decisions have to be made which fall outside the remit of a third party mandate. In such situations it is essential that a formal arrangement be put in place so that someone bears the legal responsibility for making financial decisions.
If this describes a situation you are familiar with then you should consider obtaining legal advice. It may be necessary for a Curator to be appointed. A Curator is a person appointed by the Royal Court to manage and administer the property and finances of a person who is incapable of managing their own affairs.
The procedure involves a Mental Incapacity Report being completed by a doctor or psychiatrist and sent to the Solicitor General’s office. The Solicitor General investigates the matter and will consider the proposed Curator’s suitability to the appointment. This may be a member of the person’s family, a friend or indeed a professional Curator.
A professional Curator provides an impartial solution where there are family disputes, the possibility of disputes in the future or where there is no family in the Island. A professional is also appropriate where there are legal or financial matters requiring specialist knowledge.
The Curator must file an inventory of the person’s assets to the court within 90 days of the appointment and must then file accounts annually showing the income and expenditure over the past year. In addition, the permission of the court is required for capital expenditure over a certain amount.
Dealing with another person’s finances and assets as well as your own can prove time consuming, daunting and stressful. Whilst it is possible for a Curator to resign, lay Curators often find this a difficult decision due to the feeling of moral obligation. Taking legal advice on these issues gives you the freedom of choice to make an informed decision as to whether you wish to act as Curator.
At Viberts we administer a number of curatorships and are extremely experienced in this area of the law. We also assist lay curators in administering the curatorships themselves.