On 14 September 2016 the States of Jersey adopted the Capacity and Self-Determination (Jersey) Law (the “Law”). The Law is due to come into force in April 2018 and will enable Jersey residents to put in place legally binding arrangements (such as Jersey Lasting Power of Attorney) for the future of their finances and welfare should they not have the capacity to make certain decisions for themselves in the future.
The Law brings in changes to a number of areas:-
– There is a presumption that a person has capacity unless it is established otherwise;
– The Law provides a framework that should enable people to make their own decisions insofar as possible and the law provides that a person is not to be treated as unable to make a decision unless all practicable steps to help them make the decision have been taken without success;
– For the first time, a Jersey resident will be able to plan for the risk of future mental incapacity by granting a Jersey Lasting Power of Attorney in respect of health and welfare matters and also property and financial affairs;
– The Law will enable a person to make a decision to refuse treatment if they should lose capacity to give (or refuse) consent in the future;
– The Law will also replace the current Curatorship system with the appointment of Delegates by the Royal Court for those who have lost capacity and have not put in place Jersey Lasting Power of Attorney.
The Law will include provision for Jersey Lasting Powers of Attorney which will enable residents to plan for the risk of future mental incapacity by appointing another person(s) to make decisions on their behalf. There will be two types of Lasting Powers of Attorney, which can be performed either both by the same person of by different people acting alone or jointly relating to:
The Law is a positive development towards protecting the vulnerable in Jersey.
Under the current system, an individual may put a power of attorney in place, granting power to another person to act on their behalf and on their instruction. However, that power of attorney will lapse when the individual loses capacity and, at that point, a Curator must be appointed by the Royal Court. The powers of a curator are, however, limited to only include the managing of the financial affairs of an individual. The Curator, however, has no power to make decisions in respect of the care of that individual.
Natalie Jenner | Partner | Wills Succession and Estate Planning
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