The Capacity and Self Determination (Jersey) Law 2016 (the "New Law"), which is now due to come into effect in October 2018, makes a welcome and overdue change to the old customary laws which currently govern this area of law in Jersey.
The New Law will give people the opportunity, while they still have capacity, to make their own decisions regarding their financial and personal affairs and welfare, and these decisions will take effect should they lose capacity. It provides a framework that will give people the opportunity to make their own decisions in respect of medical treatment insofar as possible, including advance decisions to refuse treatment.
At the moment, there is no mechanism in place in Jersey for a person to put into place the equivalent of an English Lasting Power of Attorney. As things currently stand, a Power of Attorney can be drafted and signed and will give your Attorney the ability to do certain things on your behalf, such as manage your bank account and pay your bills, however as soon as you lose your mental capacity, this Power of Attorney is immediately invalidated. There is therefore no way in which a person, while they have capacity, can appoint someone to look after their affairs or their future care for when they don’t have capacity, whether permanently or temporarily.
The New Law will change this and will enable anyone who is over the age of 18 and who currently has mental capacity to put in place two different types of Lasting Power of Attorney ("LPA"), similar to the procedure that is currently followed in England. One will deal with health and welfare matters and will cover issues such as medical treatment and wishes relating to life-sustaining treatment (including the refusal of such treatment), and the other will cover property and financial affairs and will give power to pay debts, make provision for the payment of that person's, or their family's maintenance and benefit, or make financial gifts to charities or to people.
The current position for a person in Jersey who has lost their mental capacity is for a Curator to be appointed by the Court to manage their affairs. However, a Curatorship only offers management of the financial aspects of their life and the Curator has no legal authority to make decisions in respect of care arrangements or other personal issues of that person. If the person has family members, then it is usual that such decisions will naturally fall to them, however for people without family to assist, this task often falls to the Curator on the basis that there is no one else to take such decisions. This can put the Curator in a difficult position, especially if the Curator is a professional who was not involved in the client's life until appointed to assist by the Court and who therefore has little knowledge of their client's wishes in terms of their care, medical assistance, beliefs and values. The New Law will address this hole in the current situation.
The New Law also makes provision for the Royal Court of Jersey to make certain appointments and decisions where a person does not take the opportunity to draw up a LPA during their lifetime but who then loses mental capacity. In such a case, the Court can appoint a 'delegate' to make health and welfare or finance and affairs decisions, which is contrary to the current position.
Importantly, protection is offered by the New Law not only to individuals potentially lacking capacity, but also to those entrusted with the decisions of the individual, provided that any decisions made are made in the best interests of the donor and in line with the authority given in the LPA. A number of judgments made by the European Court of Human Rights and the Supreme Court regarding human rights principles are reflected in the New Law in this respect. The New Law also allows the Attorney to be reimbursed for any reasonable expenses when exercising their authority or functions under the LPA.
As with any new law that is introduced, there are bound to be some 'teething problems' and for practitioners practising in this area, it is important that they are mindful of any possible risks and to advise clients accordingly. The main risk involved with the introduction of the New Law is that the powers given by a person under an LPA, in particular in respect of their property and financial affairs, could be abused. There are steps that could be taken to minimise this risk, such as obtaining professional advice so that the potential Attorney understands what they can and cannot do under the scope of the LPA, including a supervision clause in the LPA so that there is some form of accountability to a third party, limiting powers to make gifts over a certain amount, and notifying a third party after the LPA is registered. It may also be recommended for the Attorney to keep accurate accounts of the assets of the donor.
Generally, the New Law will provide consistency and clarity in respect of decisions in relation to capacity, update the approach to capacity and require proof of incapacity, will offer support to persons lacking capacity, whilst enabling them to make wider decisions in respect of their future, and will ensure that anything done for these persons is in their best interests. It will bring about a change in this area of Jersey Law which has been needed for some time.