Does a Jersey citizen have to worry about a situation similar to that faced by Britney Spears if they have lost mental capacity and a Delegate is appointed for them?

Does a Jersey citizen have to worry about a situation similar to that faced by Britney Spears if they have lost mental capacity and a Delegate is appointed for them?

It would be difficult not to have read or heard about Britney Spears fight with her father about her conservatorship. A question that has been raised by several clients is whether Jersey has a similar law that restricts individual rights in the same way?

We certainly have a similar law. This is the Capacity and Self-Determination (Jersey) Law 2016 (the “Law”). This Law is designed to make provision relating to individuals who lack capacity, and in particular to provide for the circumstances in which, and the procedures by which, certain decisions may be taken in relation to or on behalf of such individuals.

The question is whether someone like Britney Spears’ father could use this Law to his or her advantage or whether they are more stringent safeguards which the relevant law in the United States of America appears not to have.

First and foremost, the Law sets out certain core principles:

  • a person must be assumed to have capacity unless it is established that they lack capacity
  • aperson is not to be treated as unable to make a decision unless all practicable steps to support them to do so have been taken without success
  • a person is not to be treated as unable to make a decision merely because they make an unwise decision
  • an act done, or decision made, under the Law for or on behalf of a person who lacks capacity must be done, or made, in their best interests
  • before an act is done, or a decision made which is restrictive of a person’s rights and freedom of action, regard must be had to whether the purpose for which it is needed can be achieved as effectively in a less restrictive way

In essence this means a Delegate must assess whether the person can make their own decision, and this notwithstanding that a Royal Court order is in place. The presumption is for the person to be able to make their own decision.

The Delegate has a duty to assess whether the person has an understanding of the following:

  • the decision they need to make
  • why they need to make it
  • any information relevant to the decision
  • the likely consequences of the decision

In such circumstances where the person has met the assessment, the Delegate must permit the person to make a decision whether or not they agree with it or not.

Secondly, the conservatorship in the United States of America appears to provide the conservator with wide ranging rights and powers over the individual. In Jersey where someone is appointed as a Delegate the powers are more limited.

Article 7 of the Capacity And Self-Determination (Jersey) Law 2016, and Chapter 4 of the Code of Practice sets out the specific decisions which can never be made under the Law, whether by family members, carers, professionals, attorneys or the Court.

The Delegate is also more closely supervised.

Delegates must complete an annual plan and report, as at the anniversary date of the Delegate’s appointment, each year.
The Viscount is responsible for supervising and supporting Delegates. If the Viscount or a member of the person’s family have a concern an application can be made to the Royal Court to cancel a Delegate’s appointment if it decides the appointment is no longer in the best interests of the person who lacks capacity.

So, unlike in the United States of America, the Jersey Law does not provide a Delegate with carte blanche power to effectively take over run or use the assets of the person. This Law has been drafted to assist a person with his or her own decisions for his or her best interests not restrict rights. If the Delegate abuses the Law or his / her position there are facilities under the Law to deal with such.

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