A guide to the new Lasting Power of Attorney law
As lawyers, we are often asked what would happen to someone’s financial, medical and personal affairs if they become unable to manage them. The law relating to Powers of Attorney has been in place in Jersey for some time, giving the Attorney(s) the ability to help conduct the Grantor’s (person making the Power of Attorney) financial affairs. However, the law only went so far.
The Power of Attorney only remained valid until a person lost mental capacity – after this point, the Power of Attorney would become invalid and a separate instrument known as a curatorship would need to be set up and a curator appointed by the court. In broad terms, you are considered not to have capacity if it can be shown that you are unable to make a decision.
The new Lasting Power of Attorney law
With the introduction of new legislation in Jersey, which came into force in October 2018 (The Capacity and Self Determination (Jersey) Law 2016), it’s now possible to set up a legally binding Lasting Power of Attorney which gives someone you trust the power to make decisions and act on your behalf indefinitely (unless revoked). The new provisions provide for a Power of Attorney to continue right the way through the Grantor’s life, whether the Grantor retains capacity to make decisions or not. The Lasting Power of Attorney must however be granted when the grantor has capacity. The new law also makes provision for a separate Power of Attorney enabling the appointed Attorney to make decisions relating to the personal wellbeing of the Grantor and make medical decisions for him/her should the need arise.
The financial element – ‘a property and affairs LPA’
Setting up a financial Lasting Power of Attorney gives the attorney the power to withdraw money from bank accounts, enter contracts and sell/purchase property, amongst other things, so long as they act in the best interests of the Grantor. This means that should a person lose capacity, the attorney will be able to pay bills, authorise maintenance for family members etc. Under the new law, it is possible to outline certain limitations in the document in relation to the extent of the attorney’s powers if so desired. Such limitations should be carefully considered and the practicalities of such restrictions need to be well thought through.
The health and welfare element – ‘a health and welfare LPA’
This new element of the law gives the attorney the authority to make decisions in relation to health and welfare. This includes a wide range of powers from deciding where the Grantor is to live to who they maintain contact with. There are statutory restrictions upon the attorney in relation to certain decisions such as entering into a marriage or civil partnership and consent for organ donation. There are also powers that can only be exercised by the court and not by an attorney. The powers conferred to the delegate are therefore extremely wide and provide a high level of flexibility in taking on the day-to-day care of the Grantor, whilst the court maintains a semi-supervisory role to avoid an abuse of power.
The medical and life sustaining element – ‘advance decisions’
The new law introduces the concept of ‘advance decisions’. This means that a record can be kept in relation to personal wishes for medical intervention and life-sustaining treatment. This can be made and changed throughout life so long as a person has capacity to make such a decision. The ‘advance decision’ should be incorporated in the Lasting Power of Attorney to give guidance to the attorney, should such decisions become necessary. If your advance decision changes, the Lasting Power of Attorney should be modified to reflect your new wishes.
Whether you wish to set up a Power of Attorney for financial affairs, health and wellbeing or both, the document must be prepared carefully and must meet certain statutory formalities. The document must also be registered with the court in order to become effective.
At Viberts, we will be able to help you set up a Lasting Power of Attorney. With the new law in place please contact our Personal law department for further information. Email: firstname.lastname@example.org