News and Insights
28 September 2016
This briefing note covers how issues of capacity are managed under Jersey law, including the effect of incapacity on powers of attorney intended for use in the island.
It answers questions as to:
- the system Jersey implements to address capacity issues;
- the availability of lasting powers of attorney in Jersey;
- the registration of foreign powers of attorney in Jersey;
- the test for capacity to make valid decisions; and
- expected changes to the law.
Are issues relating to people who lack capacity dealt with in a special Court or as part of the general Court system?
Such issues are dealt with as part of the general Court system. The Royal Court of Jersey has the necessary statutory and inherent jurisdiction to intervene and supervise them.
Can an adult delegate authority to make decisions on their behalf using a Power of Attorney, to operate if they lose capacity in the future?
Not at present. Whilst it is possible for people to grant general and special powers of attorney in relation to their affairs and property in Jersey, these powers are revoked should the donor lose capacity. However, as explained below, this is set to change with the introduction of lasting powers of attorney under the awaited Capacity and Self-Determination (Jersey) Law.
What happens where an individual loses capacity but has not executed a valid Power of Attorney for this situation?
The Royal Court of Jersey has jurisdiction to appoint and supervise a curator under the Mental Health (Jersey) Law, 1969 to manage the person’s property and affairs. This does not include making decisions about the person’s medical care.
In the short term and in relation to an interdict’s person or physical well-being, the Mental Health Law also provides for hospital admission, ‘detention’ and guardianships. However, under certain circumstances when no-one has been appointed as curator to manage those affairs, it is the duty of the relevant government department to report to the Attorney General. He will consider applying to the Royal Court for the appointment of a curator. These circumstances are:
- when a person is admitted to hospital;
- when a person is received into guardianship; or
- when a person is, in the opinion of their doctor, suffering a lack of capacity to manage their property and affairs (i.e. in addition to their person or physical well-being).
If the Attorney General is satisfied that there is reason to believe the person is incapable of managing and administering their property or affairs, an application must be made.
Once appointed, the curator has the power to manage and administer the interdict’s property and affairs. This includes such things as are necessary or expedient for the maintenance or benefit of the interdict or their family and dependents. Certain transactions will, however, require the prior consent of the Court; for example the sale or charging of property.
A curator has certain obligations to file with the Court: an early inventory of all the inderdict’s property and ongoing annual accounts in connection with the management and administration of the interdict’s property and affairs. Rules of Court fix a curator’s remuneration relative to the annual income of the interdict.
A curatorship will come to an end on resignation, removal, the death of the interdict or on the interdict regaining capacity to manage his or her affairs. In the first two instances, the Court will appoint a replacement provided it remains necessary.
What is proposed under the new Capacity and Self-Determination (Jersey) Law?
All of the above is likely to change under a new Capacity and Self-Determination (Jersey) Law. A draft, which resembles the Mental Capacity Act 2005 of England and Wales, was sent out for public consultation towards the end of 2015. The new law is in the process of being finalised and we anticipate that it (together with a new Mental Health (Jersey) Law dealing with the treatment of people with mental disorders) will be lodged with the States of Jersey in the Spring of 2016. If it is passed by the States Assembly we can expect the new law to be brought into force by April 2018.
Major changes will be brought in under the new law, including:
- a test for mental capacity which will focus on the ability to make specific decisions; and
- the ability to make lasting powers of attorney.
How is capacity assessed?
Curators may be appointed on these grounds:
- that the person is incapable by reason of mental disorder of managing his property or affairs; or
- that notwithstanding that he is in full possession of his mental faculties, he has abandoned himself to alcohol and is dissipating his assets.
Applications must be supported by the evidence of a registered medical practitioner, given in person or in the prescribed form. This should show (i) whether or not in the opinion of the practitioner, the person is capable of managing his or her property and affairs and (ii) if not, why the person is incapable and whether or not the person is likely to recover.
Should it come into force, the new Capacity and Self Determination (Jersey) Law is likely to provide that there is a presumption of capacity and set out a statutory test for assessing capacity on a decision-specific basis.
It is also helpful to note the recent decision in Ching v CI Trustees which confirmed that the Jersey customary law test to assess the capacity of a person to make a particular decision is the same as in England. That test is; a person is of unsound mind in relation to a particular transaction if he lacks the capacity to understand the particular transaction when it is explained to him. Professional advisers would do well to bear this test in mind when facilitating transactions. It is the test which the Courts will refer to if a transaction is challenged on the grounds of incapacity and it is not expected that the new law will change this approach.
Will a Power of Attorney executed outside Jersey, which delegates authority to make decisions on behalf of an individual who lacks capacity, be recognised in Jersey?
Generally, yes. Whilst presently there is no ability for Jersey residents to create a lasting power of attorney, the principle of comity applies. Non-resident powers of attorney (including lasting powers) which are valid (and, if necessary, registered) according to the law of the jurisdiction where they are granted, will generally be recognised and effective in Jersey. In order to be recognised and effective, such powers must first be registered in the records of the Royal Court. An application for registration is made by representation and heard in Chambers.
An exception to this is likely to be a power of attorney intended to be used in a transaction involving Jersey immovable property, which under the Powers of Attorney (Jersey) Law 1995 must (a) comply with prescribed formalities; and (b) be registered in the Public Registry. Such powers will likely be revoked upon the donor losing capacity regardless of where it was executed, although this question has never been decided by the Court and the statutory rules are not altogether clear.